Assistant Commissioner Allows Patent Applicant to Keep on Trucking
In Mechanical System Dynamics Pty Ltd 2023 NZIPOPAT 10 the Assistant Commissioner withdrew the examiner’s obviousness objections after finding that the alleged invention is not obvious in relation to the cited prior art and that the examiner had provided no basis for arriving at the invention by mosaicking the prior art.
Mechanical System’s patent application concerns specific configurations for multi-articulated goods-carrying road vehicles that it contends result in improved low speed turning while also having good high speed dynamic stability and manoeuvrability. More particularly, using the example configuration shown here for reference, it concerns heavy goods transportation vehicles comprising of a prime mover (612) at the front followed by two semi-trailer bodies (614 & 618) and having a combined length of around 20 – 26 metres and a gross combined weight of 48 – 65 tonnes. The second semi-trailer body has a dolly (620) mounted beneath its front where the dolly frame (640) is pivotably connected to the above semi-trailer body as well as connected to the rear of the first semi-trailer by a drawbar assembly (642). The first semi-trailer is connected directly to the prime mover by a quick release fifth wheel coupling (632) and is supported at the rear by only a first single axle set (626), while the combined dolly and second semi-trailer is supported by an arrangement of exactly three axles.
Mechanical System’s patent application entered New Zealand via PCT national phase. The PCT International Preliminary Report on Patentability (IPRP) cited four pieces of prior art and found the application to be novel but lacking in inventive step on the basis that the skilled addressee would combine / mosaic two of those pieces of prior art (D1 and D2). D1 is a prior PCT application by Mechanical System and both the IPRP and the examiner assert that the disclosure therein only differs from D1 in that it does not disclose that the rear of the first semi-trailer is supported by only a first single axle set. This difference was said to be obvious and D2 was asserted to be a qualifying example of a first semi-trailer supported by only a first single axle set. By the second examination report the examiner dropped the obviousness objection in relation to a mosaicking of D1 and D2 on the basis that D2 did not disclose a combination vehicle containing two semi-trailers. However, the examiner now cited two further pieces of prior art (D5 and D6) and sought to establish obviousness by mosaicking D1 and D5 or D1 and D6.
The Assistant Commissioner (AC) noted that the examiner’s obviousness analysis did not expressly apply the standard (Windsurfing/ Pozzoli) test for obviousness as given in Pozzoli SPA v BDMO SA  EWCA Civ 588,  FSR 37 at , which is a restatement of the test from Windsurfing International Inc v Tabur Marine (GB) Ltd  RPC 59 (CA).
Given the regulatory compliance involved the AC considered the person skilled in the art would at least be a heavy transport certifying engineer and/ or a design engineer experienced in heavy road vehicle design / engineering and conversant with heavy vehicle design rules, standards, transportation legislation including relevant acts and regulations, vehicle configurations, and roadworthiness guidelines.
Regarding the differences between the prior art and the claimed invention the AC agreed with Mechanical System’s contention that another difference with D1 is that the towing vehicle is a rigid truck rather than a prime mover. Namely, the cargo area and platform behind the driver’s cab is rigidly connected to the cab and not connected directly to the prime mover by a quick release fifth wheel coupling. The AC also pointed to another difference being that the first semi-trailer / cargo platform in D1 is supported by 3 axles rather than only one. The AC concluded that D1 teaches away from modifying the number of axles on the semi-trailer in order to provide good low speed turning characteristics as well as good high speed dynamic stability and manoeuvrability. The AC then proceeded to individually distinguish the other 5 pieces of prior art from the claimed invention.
Given the differences found in respect of D1 the AC concluded that there was no basis for establishing obviousness by way of mosaicking D1 and D5 or D1 and D6. In particular, it was held that there is no teaching in any of the cited prior art that altering heavy vehicle trailers in the manner contended by the examiner would have resulted in the combination vehicle having good low speed turning characteristics as well as good high speed dynamic stability and manoeuvrability.
Author: Quinn Miller