Bridgeview Manufacturing Inc. v. 931409 Alberta ltd. (Central Alberta Hay Centre)

Bridgeview Manufacturing Inc. v. 931409 Alberta ltd. (Central Alberta Hay Centre)
Court (s) Database
Federal Court Decisions
Date
2009-01-20
Neutral citation
2009 FC 50
File numbers
T-1554-05
Notes
Digest
Decision Content
Date: 20090120
Docket: T-1554-05
Citation: 2009 FC 50
Toronto, Ontario, January 20, 2009
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
BRIDGEVIEW MANUFACTURING INC. and
HIGHLINE MANUFACTURING LTD.
Plaintiffs
and
931409 ALBERTA LTD. c.o.b. CENTRAL ALBERTA HAY CENTRE,
DENNILL'S AGRICENTER LTD. and
DURATECH INDUSTRIES INTERNATIONAL, INC.
Defendants
AND BETWEEN:
931409 ALBERTA LTD. c.o.b. CENTRAL ALBERTA HAY CENTRE,
DENNILL'S AGRICENTER LTD. and
DURATECH INDUSTRIES INTERNATIONAL, INC.
Plaintiffs by Counterclaim
and
BRIDGEVIEW MANUFACTURING INC. and
HIGHLINE MANUFACTURING LTD.
Defendants by Counterclaim
REASONS FOR JUDGMENT AND JUDGMENT
[1] Bridgeview Manufacturing, a Saskatchewan corporation, and DuraTech Industries, a North Dakota corporation, are each manufacturers of their own version of a machine used for disintegrating baled crop material, respectively named the Bale King and the Balebuster 2650. These “bale processors” take a round bale of hay, disintegrate it, and distribute the discharge on the ground. Watching the discharge is important because quick action is needed if the processor jams. An important feature of each bale processor is that, as a tractor pulls it forward, each discharges the disintegrated bale material to the right-hand side viewed from the driver’s position looking forward. Tractors have the controls on the right, and because each machine discharges to the right, the driver can conveniently watch the discharge over his or her right shoulder. A right-hand discharge is considered to be an advantage because a left-hand discharge requires the driver to, inconveniently, turn more fully to the right to see the discharge coming out the left-hand side. The marketing material of each machine is designed to attract buyers to this advantage.
[2] The present litigation centres on the fact that DuraTech’s development of the Balebuster was inspired by Bridgeview’s Bale King. The Bale King was on the market when DuraTech went into production with the Balebuster, and DuraTech knew that Bridgeview held a patent for its right-hand discharge system. Therefore, the primary issue for determination is whether the Balebuster’s right-hand discharge system infringes Bridgeview’s Canadian Patent No. 2,282,334 (the Patent or the ‘334 patent).
[3] With respect to Bridgeview’s claim of monopoly to the advantage of a right-hand discharge bale processor, a principal argument advanced by DuraTech is that the Balebuster does not infringe because its discharge system is different than that claimed in the Patent. DuraTech also argues that the Patent is invalid because the use of a right-hand discharge on a bale processor is not inventive.
[4] For the reasons which follow, I accept DuraTech’s arguments that the Balebuster does not infringe the Patent and the Patent is invalid.
[5] The law on patent construction, infringement, and invalidity is generally not in dispute. As a result, the law applied on these issues is summarized and stated in Appendix A, with specific quotations from the summary being included in the body of these reasons for emphasis. The approach adopted in these reasons is to first identify the issues in play with a question, and then supply reasons for the conclusion reached on each issue.
I. The Litigation
[6] Bridgeview’s co-Plaintiff, Highline Manufacturing, manufactures a right-hand discharge bale processor sold under the name of “Bale Pro” as a licensee under the Patent. DuraTech’s co-Defendants are Canadian sellers of the Balebuster.
[7] Bridgeview’s Amended Statement of Claim makes the following statement respecting “the Defendants’ wrongful activities”:
9. The Defendants, Central Alberta Hay and Dennill’s, have sold, sell and offer for sale in Canada a crop material processor known as the “Haybuster 2650 Balebuster” (the “2650”), which is manufactured in the U.S. by DuraTech. By reviewing at least the products, brochures and other materials of Bridgeview known to DuraTech prior to 2004, DuraTech learned of designs being manufactured and sold by Bridgeview, including “Bale King” right-hand discharge bale processors. Based on the right-hand discharge designs that it learned, DuraTech proceeded to copy this aspect of Bridgeview’s bale processors during the manufacture of the 2650.
[…]
11. As such, in the absence of proper authorization, said sales by the Defendants, Central Alberta Hay and Dennill’s, of the 2650 constitute infringement of the ‘334 patent. These unauthorized sales have been made in Canada since at least June 2004, the full particulars of which being known to said Defendants and not the Plaintiffs. However, the Plaintiffs claim in respect of all infringing activity.
12. The Defendant, DuraTech, also manufactures a crop material processor known as the “Haybuster 2800 Balebuster” (the “2800”).
[…]
14. Without proper authorization, the 2800 has been used and sold in Canada, which constitutes the infringement of the ‘334 patent. The full particulars of the use and sale in Canada of the 2800 are known to the Defendant, DuraTech, and not the Plaintiffs. However, the Plaintiffs claim in respect of all infringing activity.
15. The Defendant, DuraTech, has induced or procured the said infringing activity in respect of both the 2650 and the 2800. This infringing activity would not have occurred but for DuraTech manufacturing the 2650 and the 2800 for the purpose of use and sale in Canada, and DuraTech exercising influence over Central Alberta Hay, Dennill’s, all Canadian distributors of DuraTech’s 2650 and 2800, and others known to DuraTech, to undertake the infringing activity in respect of both the 2650 and 2800 in Canada. DuraTech’s inducement and procurement of said infringing activity has been furthered by its marketing and advertising activities with respect to both the 2650 and the 2800 in Canada, which activities are directed towards all Canadian distributors of DuraTech’s 2650 and 2800. DuraTech’s inducement and procurement has been taking place since at least as early as September 2003 in respect of the 2650 and since at least as early as February 2005 in respect of the 2800, the full particulars of which being known to DuraTech and not to the Plaintiffs. However, the Plaintiffs claim in respect of all inducing and procuring activity.
[8] In its Amended Statement of Defence and Counterclaim, DuraTech fully defends its actions but does provide the following response to paragraph 9 of the Amended Statement of Claim:
10. As to paragraph 9, the defendants Central Alberta Hay and Dennill’s admit only that they have sold, sell and offer for sale a bale processor known as the “Haybuster 2650 Balebuster." And, DuraTech admits only that it was aware that Bridgeview had begun marketing a "Bale King" right-hand discharge bale processor prior to DuraTech designing the "Haybuster 2650 Balebuster."
At trial, Counsel for DuraTech stated that if infringement is proved, Bridgeview’s inducement allegations would not be defended, and also stated that it would not be advancing an argument on the issue of anticipation.
[9] It is agreed that the Balebuster 2650 and its larger version the Balebuster 2800 have the same basic design, and, therefore, the infringement issue centres only on the Balebuster 2650. It is also agreed that the claim date against which prior art is to be decided is April 30, 1999; the Patent is entitled “Crop Material Processor” and was issued on November 20, 2001 from an application filed on September 17, 1999 and published on April 13, 2000, but it claims priority from U.S. Patent Application Serial No. 09/303,263 filed on April 30, 1999.
II. The Expert Evidence
[10] Each side to the litigation has tendered one expert to offer an opinion on the correct construction of the claims in the Patent, whether DuraTech’s machine infringes the Patent, and whether the Patent is invalid.
A. The experts
[11] DuraTech’s expert is Dr. Richard L. Parish, and Bridgeview’s expert is Mr. Craig Hanson. The following reports were prepared: Dr. Parish prepared a report dated August 28, 2008 (Parish Report); Mr. Hanson prepared a report dated September 2, 2008 (Hanson Report); Dr. Parish prepared a response to the Hanson Report dated October 1, 2008 (Parish Second Report); and Mr. Hanson prepared a response to the Parish Report dated October 1, 2008 (Hanson Second Report).
[12] Dr. Parish describes his qualifications as follows:
I am a Professor of Agricultural Engineering at Louisiana State University ("LSU") and a Professional Engineer.
I obtained my Bachelor of Science in Agricultural Engineering in 1967, my Masters of Science in Agricultural Engineering in 1968, and my PhD in Agricultural Engineering in 1970, all from the University of Missouri.
I began teaching at the University of Arkansas as an Assistant Professor, then Associate Professor of Agricultural Engineering from 1969-1974. During this period, I conducted research on farm machinery as well as teaching agricultural equipment and engineering design courses.
My principal industry experience was from 1974 to 1983 when I worked as the Manager of Mechanical Research and Development with O.M. Scott and Sons Company ("Scott"), a seed and fertilizer company, where I was responsible for all the mechanical products of the company. During this period I developed new fertilizer and seed spreading equipment.
Since 1983, I have been an Associate Professor and then full Professor at LSU. I have developed and taught courses in agricultural machinery and design. Some of my students have gone on to work as engineers designing agricultural equipment, including hay and forage equipment. I have also conducted research on farm equipment and I serve as a State Extension Specialist in farm machinery. I currently manage the Coastal Area Research Station in addition to my research and extension responsibilities.
I have written or co-written over 350 articles and papers in the fields of engineering and agriculture.
I have acted as a consultant providing forensic engineering services and litigation assistance in more than forty (40) cases involving agricultural equipment. Three (3) of the cases I was involved with were patent cases.
(Parish Report, paras. 1-6)
[13] Bridgeview’s expert is Mr. Craig Hanson who describes his qualifications as follows:
I am currently the owner and operator of a medium-sized grain farm of approximately 4,000 acres. I am also registered in the province of Saskatchewan as a professional engineer (P. Eng.) and as a consulting engineer.
In 1984, I obtained my Bachelor’s degree in Agricultural Engineering from the University of Saskatchewan. My undergraduate courses included the study of machine design and agricultural processing methods. I obtained my Professional Engineer status in 1987.
In 1993, I obtained my post-graduate diploma in Agricultural and Bioresource Engineering from the University of Saskatchewan. My program included classes in control system design, engineering analysis, and pattern recognition.
I obtained my Master’s of Science in Mechanical Engineering, again from the University of Saskatchewan, in 1998. My Master’s degree thesis was entitled “Analysis of Operator Patterns in Machine Operation for Automatic Guidance of Agricultural Equipment”.
When I graduated with my Bachelor’s degree in 1984, I was employed with John Deere Limited as an area service manager. My position required that I investigate problems with agricultural machinery in the field and report technical problems and solutions.
I then worked at the Humboldt, Saskatchewan station of the Prairie Agricultural Machinery Institute (“PAMI”) from 1987 to 1997 as a project manager, as well as project engineer/field test supervisor for various agricultural machines. During my time at PAMI, I directed evaluation, and research and development projects relating to agricultural and processing machinery systems.
Of particular relevance to this case, as part of my job responsibilities for PAMI I was exposed to and conducted testing on a Highline Manufacturing Ltd. “Top Gun” bale processor over the period of 1995 to 1997. The Top Gun was essentially a bale processor having a high-powered blower. My duties relating to the Top Gun included performing drive train analyses, taking power measurements, and specifying driveline components.
In addition to the above, I observed an older Haybuster (i.e., DuraTech Industries International, Inc.) bale processor in operation in Colorado in 1997.
I left PAMI in 1997 to focus on operating my farm (Kinhop Farms Ltd.) and to provide engineering consulting services. I have given expert evidence before the Courts on four previous occasions: one involving the performance of hydraulically powered equipment; one involving drive-over conveyors; one involving vertical feed mixers; and one involving a powered drain cleaner and related safety factors. Two of the four cases involved patent infringement claims.
In addition to my academic studies of agricultural machinery undertaken in my engineering courses, I have over 25 years of practical experience using a wide variety of agricultural equipment.
(Hanson Report, paras. 2 -11)
[14] No objection was raised to the qualifications of either Dr. Parish or Mr. Hanson to give expert opinion on the issues in the present litigation.
III. Who is the Ordinary Person Skilled in the Art?
[15] The Patent concerns the design and functioning of a bale processor. Therefore, the skilled person is required to have common general knowledge of this subject matter as described in the Patent’s disclosure and claims.
A. The disclosure
[16] The “Field of the Invention” section states that “the present invention relates generally to a crop material processor and more particularly to a crop material processor for disintegrating baled crop materials”. The “Background of the Invention” section describes that a typical example of such a known machine “comprises a container for receiving the bales, a disintegrator often in the form of a roller with cutters or flails for chopping or shredding the material from the bale, a mechanism including manipulator rollers to direct the bale to the disintegrator and a discharge slot such that the crop material is discharged from the bail processor”, and states that “one of the major problems which appears to occur with baled crop material processors is that they tend to jam”. Following a description of the factors that cause jamming in the typical machine the opinion is expressed that “there is a need to provide a crop material processor for disintegrating baled crop material capable of keeping to a minimum the amount of loose crop material in the processor that may cause jamming”.
[17] Consistent with the opinion that there is a need to improve the machine to reduce jamming, the first line in the “Summary of the Invention” section states “it is therefore an object of this invention to provide a baled crop material processor that minimizes jamming”. The description of the certain machine that will accomplish this result is contained in the immediately following paragraphs:
These and other objects are achieved in a baled crop material processor for disintegrating baled crop material. The crop material processor comprises a container having a bottom, a front wall, a back wall, and left and right side walls for receiving and containing the crop material. A disintegrator having a flail roller that is rotatable about its own longitudinal axis is mounted to extend between the front and the back of the container. A number of flails are pivotally fixed about the flail roller such that they will extend radially from the flail roller as the flail roller rotates. The processor further includes a discharge opening at the bottom of either the left or the right side wall to discharge the disintegrated baled crop material and a mechanism for supporting and manipulating the baled crop material so that it will be moved to the disintegrator in such a manner that disintegration of the baled crop material is carried out primarily by the disintegrator.
In accordance with an aspect of this invention, the processor may be unidirectional, discharging the disintegrated crop material either to the left or to the right of the processor, or the processor may be bidirectional with a mechanism for allowing the operator to discharge from the left or the right. The direction of rotation of the flail roller will depend on the side of the processor that discharge is desired. The flail roller will rotate in the counter-clockwise direction for discharge to the left and in the clockwise direction for discharge to the right.
In accordance with another aspect of the invention, the support and manipulation mechanism includes at least two manipulator rollers rotatably mounted inside the container substantially parallel to the flail roller wherein at least one roller is located on each side of the flail roller to define a disintegration opening where crop material is accessed by the disintegrator….[Emphasis added]
(Patent, pp. 3 -4)
Detailed description is also provided about certain of the components of the machine being: the desired shape of the rollers, and the number, shape, and direction of “paddles” mounted on the rollers; the need for “a mechanism for connection between the processor flail roller and the a [sic] source of rotating power to assure that the flail roller rotates in the desired direction”; the desired shape of the side walls of the container with respect to the proximity of the paddles on the manipulator rollers, the need for a “number of hoops” mounted in a certain position along the container length, the description of “flails” mounted on the flail roller.
[18] The “Brief Description of the Drawings” section describes embodiments of the invention, and the “Detailed Description” section describes “the structure of the crop material processor, the operation of the crop material processor and the advantages of the crop material processor in accordance with the present invention in that order”. The “advantages” description comments on features of the invention that deal with the jamming problem including the configuration of the paddles, the rollers, the shape of the side walls, the ability of the invention to reverse direction, and the fact that the operator of the invention does not have to cut the twine that ties the crop material before loading but needs only to remove it from the flair roller. In addition, the following advantage is claimed:
A processor [shown in Fig. 11 and Fig. 12] which discharges the disintegrated baled crop material from the right of the processor [shown in Fig. 11 and Fig. 12] is particularly advantageous in that it allows the operator to more adequately and comfortably control the operation. Most tractors have their controls located on the right hand side of the tractor and so it is more natural and common for the operator to observe the operation of the farm equipment behind him by turning to the right. The bidirectional processor 1(figures 11 and 12) provides the operator total versatility since it allows the operator to discharge the disintegrated baled crop material in any way desired.
(Patent, p.17)
[19] The last statement in the disclosure is as follows:
Many modifications to the above described embodiments of the invention can be carried out without departing from the scope thereof, and therefore the scope of the present invention is intended to be limited only by the appended claims.
(Patent, p. 17)
B. The claims
[20] The claims are as follows:
1. A crop material processor for disintegrating baled crop material comprising:
a container for receiving and containing the crop material, the container having a bottom, a front wall, a back wall, a left side wall and a right side wall;
a disintegrator having a roller positioned along the length of the container mounted to rotate about its own longitudinal axis;
a manipulator mounted inside the container substantially parallel to the disintegrator;
a discharge opening at the bottom of the right side wall to discharge material from the right side of the processor; and
rotation conversion means having an input for connection to a rotating power source and an output connected to the disintegrator roller to provide a direction of rotation to the disintegrator roller opposite to the direction of rotation at the conversion means input.
2. A crop material processor as claimed in claim 1 wherein the disintegrator roller is adapted to rotate in a clockwise direction.
3. A crop material processor as claimed in claim 1, wherein the rotation conversion means comprises a first gear and a second gear positioned to drive one another, the first gear being mounted on a first rotatable shaft having an extended end forming the conversion means input and the second gear being mounted on a second rotatable shaft having an and for connection to the flail roller.
4. A crop material processor as claimed in claim 1, wherein the roller is a flail roller.
5. A crop material processor as claimed in claim 1, wherein the manipulator comprises at least two manipulator rollers rotatably mounted inside the container substantially parallel to the disintegrator roller, and wherein at least one roller is located on each side of the disintegrator roller to define a disintegration opening where crop material is accessed by the disintegrator.
(Patent, pp. 18 – 19)
C. The expert opinion
[21] Dr. Parish and Mr. Hanson express a difference of opinion on the qualifications of the ordinary person skilled in the art of the design and functioning of bale crop material processors.
[22] In Dr. Parish’s opinion, the skilled person would have focussed academic qualifications:
I would describe the person of ordinary skill in the art to whom the '334 patent was addressed (hereafter "skilled person") to be a graduate engineer with a bachelor's degree in either agricultural or mechanical engineering, with at least one year's experience in the design of hay and forage equipment. This person would be familiar with commercially available bale processing equipment. I understand from counsel that this person would also be deemed to have knowledge of the prior art literature that would be available at the claim date by reason of a reasonably diligent search.
(Parish Report, para. 15)
However, in contrast, Mr. Hanson puts emphasis on practical experience:
In my view, the ‘334 Patent is addressed to someone with strong practical experience in agricultural machinery generally, as well as a sound understanding of the mechanical and structural aspects of such machinery. In other words, the ‘334 Patent is addressed to a broad range of people having a wide variety of practical experiences and/or varying levels of education. A skilled addressee would also include someone who is employed to research, develop, manufacture, test, service and/or repair agricultural machinery generally, such as a welder, machinist or engineer. With respect to this latter skilled addressee, he/she may: (1) have formal training in relevant areas, such as a college or university degree in a mechanical-oriented program and at least a minimal amount (i.e., two years) of practical experience; or (2) have a body of knowledge concerning machinery from extensive years of practical experience. In sum, a skilled person would generally understand how a bale processor and its various components work, as well as that such a processor is capable of forcefully and efficiently chopping or shredding material from a bale of hay, and rapidly discharging that material a relatively long distance.
(Hanson Report, paras. 35 - 37)
Dr. Parish responds as follows:
In paragraphs 35-37, Mr. Hanson defines a person of ordinary skill to include a machinist or welder, who might service or repair a bale processor. I think this sets the bar too low. This patent is directed to one who will design and build an improved bale processor or reconfigure an existing one. This would not be within the scope of the duties of an ordinary welder or machinist. They would no doubt be involved in implementing instructions, but one would expect an engineer to oversee and approve the work.
(Parish Second Report, para. 7)
1. Conclusion: The skilled person is the person Mr. Hanson describes.
[23] With respect to the Patent, in my opinion, the common general knowledge required of the skilled person is most closely that described by Mr. Hanson. While both Dr. Parish and Mr. Hanson agree that the skilled person must have farm equipment design and function expertise acquired by a combination of academic and practical training, I agree with Mr. Hanson’s emphasis on knowledge of the practical day-by-day aspects of design implementation and equipment operation. The Patent is directed at a skilled person who knows the prior art history of farm equipment development generally, and bale processors specifically, but, most importantly, also has a practical understanding of the problems faced by farm equipment operators generally, and bale processor operators specifically.
V. What is the Purposive Construction of the Patent?
[24] In the present case, the construction of Claims 1, 2, and 4 is in issue. A comparison of the disclosure of the Patent to the claims has produced a difference of expert opinion as to the construction that would be found by the skilled person.
[25] The disclosure specifically describes the mechanical components of a certain design of bale processor, and identifies the features that will have the effect of reducing jamming of the machine in operation. One feature described is the advantage of right-hand discharge of the disintegrated bale material. However, Claim 1 claims a monopoly to a combination invention comprised of only generally described mechanical components of a generally described bale processor. As a result, in determining the purposive construction of the Patent, there is an issue as to whether the Patent meets the standard set by Justice Binnie in Whirlpool Corp. v. Camco Inc., [2000] 2 S.C.R. 1067 at para. 42:
The content of a patent specification is regulated by s. 34 of the Patent Act. The first part is a "disclosure" in which the patentee must describe the invention "with sufficiently complete and accurate details as will enable a workman, skilled in the art to which the invention relates, to construct or use that invention when the period of the monopoly has expired": Consolboard Inc. v. MacMillan Bloedel (Sask.) Ltd., [1981] 1 S.C.R. 504, at p. 517. The disclosure is the quid provided by the inventor in exchange for the quo of a 17-year (now 20-year) monopoly on the exploitation of the invention. The monopoly is enforceable by an array of statutory and equitable remedies and it is therefore important for the public to know what is prohibited and where they may safely go while the patent is still in existence. The public notice function is performed by the claims that conclude the specification and must state "distinctly and in explicit terms the things or combinations that the applicant regards as new and in which he claims an exclusive property or privilege" (s. 34(2))". An inventor is not obliged to claim a monopoly on everything new, ingenious and useful disclosed in the specification. The usual rule is that what is not claimed is considered disclaimed.
[Emphasis added]
The primary question is: does Claim 1 state “distinctly and in explicit terms things or combination that the inventor regards as new”? The ancillary question which arises is whether, in determining the purposive construction of the Patent, and to meet the standard described by Justice Binnie in Whirlpool, would the ordinary person skilled in the art use the disclosure to provide an expanded interpretation of Claim 1 to answer the following questions: what is the distinct and explicit description of the “crop material processor for disintegrating baled crop material” that is new, and what is the distinct and explicit description of its named components that are new? The expert evidence is in sharp conflict on the answers to these questions.
A. Dr. Parish’s opinion on construction
[26] Counsel for DuraTech argues that the “crop material processor for disintegrating baled crop material” named in Claim 1 is the same crop material processor described in the “Background” and “Summary of the Invention” sections of the disclosure. Dr. Parish supplies an expert opinion in support of this argument by looking to the disclosure:
A skilled person would know at this time that different types of baled crop material processors had been on the market and disclosed in the literature and patents. These would include processors that used rollers to support and rotate the bale, e.g the Bale King; processors that used a chain conveyor type of apparatus, e.g., the Balebuster; and processors that used a rotating tub, e.g. the Hesston BP processors. On its face, the term "crop material processor" could embrace any of these processors, but it would make no sense to give it that meaning in the context of this patent.
This patent is clearly all about a "crop material processor" of the type that uses rollers to support and rotate the bale. The inventor has repeatedly stated that the processor which is the subject of the patent has "manipulation rollers" and more specifically that the disintegrator is located between two of these rollers. There is no suggestion that he intended other types of bale processors to be within the scope of this patent.
The phrase "crop material processor for disintegrating baled crop material" used in Claim 1 would be understood by a skilled reader to mean the type of "baled crop material processor" spoken of in the patent disclosure, for example as described on page1 at lines 17-23 [A baled crop material processor basically comprises a container for receiving the bales, a disintegrator often in the form of a roller with cutters or flails for chopping or shredding the material from the bale, a mechanism including manipulator rollers to direct the bale to the disintegrator and a discharge slot such that the crop material is discharged from the bail processor. Any number of manipulator rollers are possible, however, the disintegrator is located between and below two of the manipulator rollers]. [Emphasis added]
(Parish Report, paras. 63 - 65)
[27] Based on this opinion, Dr. Parish goes on to give an opinion on the construction of the other terms used in Claim 1 as follows:
a container for receiving and containing the crop material, the container having a bottom, a front wall, a back wall, a left side wall and a right side wall
This element of the claim would have been understood to mean that a receptacle with four (4) walls and a bottom is mounted to the frame of the bale processor. The container "receives" the bale, and "contains" the bale as it is disintegrated into fragments. The four walls would be big enough to hold the bale and high enough to restrain the bale and stop it from falling out or bouncing out of the machine while it is being processed, but the walls wouldn't necessarily have to be higher than the bale. The bottom would be a surface of the container underneath the disintegrator that receives and guides the shredded material to a discharge opening.
a disintegrator having a roller positioned along the length of the container mounted to rotate about its own longitudinal axis
This claim element would have been understood to refer to a disintegration rotor mounted with its axis of rotation parallel to the direction of travel of the machine so that the disintegrated material is discharged to the side of the machine.
a manipulator mounted inside the container substantially parallel to the disintegrator
To a skilled person in the field of agricultural equipment, who had not read this patent, the term "manipulator" would probably mean either a robot arm or a similar mechanical linkage intended to move in discrete fashion in a specific path or paths in response to operator input [footnote omitted]. If one were to mention the "manipulator" of a bale processor, a skilled person would probably think of the hydraulic forks used to pick up a bale from the ground to place it in the container.
Read in the context of this patent, however, it would be clear to a skilled person that the inventor intended the term "manipulator" to mean the elements that he called "manipulator rollers", which support and move the bale to the disintegrator. These rollers are the elements, which gave rise to the "major problem" of jamming and to which the inventor directed much of his attention.
The fact that the claim says that the "manipulator is mounted inside the container substantially parallel to the disintegrator" also implies that the claim is speaking of a long roller type element aligned with the flail roller of the disintegrator so that they are equidistant from each other along their respective lengths.
While interpreting the meaning of "manipulator" in Claim 1, I have not overlooked the fact that Claim 5, which is dependent on Claim 1, claims a bale processor with "at least two manipulator rollers rotatably mounted inside the container substantially parallel to the disintegrator roller, and wherein at least one roller is located on each side of the disintegrator roller to define a disintegration opening where crop material is accessed by the disintegrator." I have been advised by counsel that a dependent claim usually narrows the scope of the claim from which it depends.
In comparing Claim 5 and the "manipulator" of Claim 1, I observe the following differences.
(a) The term "manipulator" in Claim 1 could, absent the context of the patent, mean a single roller whereas Claim 5 has at least two rollers.
(b) Claim 1 does not specify that the manipulator is "rotatably" mounted in the container as Claim 5 does. This could mean that Claim 1 covers a manipulator that does not rotate.
(c) Claim 1 does not specify that the "manipulator" would "define a disintegration opening" as specified in Claim 5.
However, in my opinion, it is not plausible that a skilled person having read the patent would think that the inventor intended Claim 1 to cover a single roller, or a roller that did not rotate. The only plausible construction of Claim 1 is that he intended to claim at least two rollers: one on each side of the disintegrator. Therefore, the only plausible difference between Claim 1 and Claim 5 is the additional specification that the rollers "define a disintegration opening" in Claim 5. I can imagine that, even though there might be a roller on each side of the disintegrator, the opening to the disintegrator might be defined by some additional or other means. For example the container walls and the hoops could be formed to make a channel or chute that would define the disintegration opening rather than the rollers. Accordingly, Claim 5 would be narrower than Claim 1.
In my opinion, if the term "manipulator" were not restricted to rollers with at least one roller on each side of the disintegrator, then Claim 1 and its dependent claims would be broader in scope than what has been disclosed in the patent.
a discharge opening at the bottom of the right side wall to discharge material from the right side of the processor
In my opinion, this term would have been understood to mean an opening at the bottom of the right hand side wall of the container to allow the disintegrator to blow the disintegrated material out of the machine to the right of the operator when facing forward.
rotation conversion means having an input for connection to a rotating power source and an output connected to the disintegrator roller to provide a direction of rotation to the disintegrator roller opposite to the direction of rotation at the conversion means input
This term would have been understood to mean that a gearbox or other conventional reversing mechanism to reverse the direction of rotation of the disintegration roller as compared to the PTO (or other source of rotation power) included in the driveline of the bale processor, so as to make the disintegrated crop material discharge to the right of the operator when facing forward. [Emphasis in the original]
(Parish Report, paras. 66 – 76)
B. Mr. Hanson’s opinion on construction
[28] As does Dr. Parish, Mr. Hanson approaches the issue of construction by looking to the disclosure, but, unlike the broad view taken by Dr. Parish, Mr. Hanson takes a very narrow view as described in the following passage from his opinion:
The ‘334 Patent discusses a number of features and advantages relating to the particular crop material processor it discloses. For example, the disclosure of the ‘334 Patent addresses, among other things, the problem of jamming in a crop material processor, and the need to keep such jamming to a minimum. However, notwithstanding the discussion related to jamming in the disclosure, one must specifically look to the claims of the ‘334 Patent in order to determine what the inventor intended as being his claimed invention.
In this regard, the problems that the invention teaches and overcomes in the ‘334 Patent are the problems associated with the left-hand discharge nature of bale processors….
[…]
Thus, the invention claimed in the ‘334 Patent is directed to operator comfort, convenience and ease of use….[Emphasis added]
(Hanson Report, paras. 40, 41, and 44)
As a result, Mr. Hanson gives the following opinion respecting the “bale crop material processor for disintegrating baled crop material” named in Claim 1:
One skilled in the art, as is defined above, would understand what a crop material processor is. Such a person would know that a crop material processor relates to a device generally intended for dealing with bales of fibrous crop material.
More particularly, and as suggested by the phrase “for disintegrating baled crop material”, such a processor would be understood to be configured in a manner that tears apart or chops up such crop material, and distributes it in some fashion.
Such construction of the phrase “crop material processor” is supported by the ‘334 Patent disclosure, which states:
A machine to disintegrate bales of crop material is sometimes known as a baled crop material processor… A baled crop material processor basically comprises a container for receiving the bales, a disintegrator often in the form of a roller with cutters or flails for chopping or shredding the material from the bale, a mechanism including manipulator rollers to direct the bale to the disintegrator and a discharge slot such that the crop material is discharged from the bail processor. [Patent, p. 1, lines 15 – 21] …
The crop material 12 may be any type of hay, straw or other forage that can be used as feed or bedding for animals. [Patent, p. 7, lines 13 – 14]
The skilled person would understand that having a crop material processor capable of disintegrating a bale of hay or other crop material would be an essential element of the invention in claim 1 of the ‘334 Patent.
(Hanson Report, paras. 51 – 54)
1. Conclusion: The terms used in Claim 1 are to be given an expanded meaning.
[29] With respect to the expert evidence, I give weight to Dr. Parish’s opinion because it provides a result which fairly and honestly satisfies the standard set by Justice Binnie in Whirlpool , and it meets the requirement that, in concluding on the construction of a patent, the full context of the patent must be considered. However, because Mr. Hanson’s opinion is not based on a consideration of the whole of the disclosure, I give it no weight.
[30] The topic of claim differentiation requires a comment. Counsel for Bridgeview argues that, the presumption against claim redundancy, being that the p