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tion. If the applicant by canceling the claims acquiesces in the requirement of division made by the Examiner, the latter has a right to consider his action upon the matter final and to refuse further consideration of claims based upon the matter covered by the claims canceled pursuant to his requirement for division.
In the present case it appears that there are no claims upon the process now pending before the Examiner, and he might have considered these claims upon the merits and have refused to enter any process claims which might subsequently be presented. Instead of taking this arbitrary course he has given the applicants an opportunity to again present process claims for the purpose of finally determining whether the matters included in the application comprise a unitary invention or divisible inventions. This course of the Examiner is eminently fair to the applicants, and I find no sufficient reason which will warrant the granting of the request of the applicants.
The petition is denied.
SINCLAIR V. ENGEL.
Decided June 12, 1909.
147 0. G., 769.
1. INTERFERENCE-PRIORITY-Right TO MAKE CLAIMS-CONSTRUCTION OF ISSUE.
In deciding whether a party to an interference has a right to make a claim involved therein such claim should be given the broadest meaning consistent with its terms; but it cannot be enlarged beyond the plain import
thereof as set forth in the specification on which it is based. 2. SAME-SAME-SAME-SAME.
Where the invention in issue is a water-tube boiler and the counts which correspond to S.'s claims specify, respectively, “a plain drum having separate tube-landings formed therein " and "a plain drum having parallel rows of separate circular tube-landings," Held that these claims cannot be made by E., whose application discloses a drum having landings adapted to receive at least two tubes.
APPEAL from Examiners-in-Chief.
Messrs. Howson & Howson for Sinclair,
Mr. J. Nota McGill for Engel. MOORE, Commissioner:
This case is before me on appeal by Sinclair from the decision of the Examiners-in-Chief awarding priority of invention as to count 1 to Engel and on appeal by Engel from their decision awarding priority of invention to Sinclair as to count 2 of the issue.
The issue is as follows:
1. In a water-tube boiler, a plain drum having separate tube-landings formed therein, in parallel rows, and so arranged as to leave sufficient space between the adjacent transverse rows for the insertion or withdrawal of the tubes from either side of a row without the use of manholes, as described.
2. In a water-tube boiler, a plain drum having parallel rows of separate cir. cular tube-landings formed partially above and partially below the drum-face, and so arranged as to leave sufficient space between the adjacent transverse rows for the insertion or withdrawal of the tubes from either side of a row without the use of manholes, as described.
The invention in issue relates to improvements in water-tube boilers in which two cylindrical drums are connected by a series of watertubes, the heat from the furnace being caused to pass through the interstices between the tubes.
Sinclair is a patentee; but the application upon which his patent was granted was not filed until October 23, 1906, whereas the application of Engel was filed September 5, 1905. Neither party has taken testimony; but it is contended in behalf of Sinclair that Engel has no right to make the claims corresponding to the counts of the issue.
The structures of each party comprise a plurality of drums connected by tubes, the landings for the tubes upon the respective drums being parallel and formedpartially above and partially below the surface of the drum-face.
In the Sinclair structure, as disclosed in his drawing and specification, each tube is provided with a separate landing substantially circular in form, and the rows of tubes are spaced sufficiently far apart to permit the withdrawal of the tubes from either side of a row. In the structure disclosed in the Engel drawings and specification each landing is adapted to receive at least two tubes, and the landings are so spaced apart as to permit the removal of the tubes between the adjacent landings.
The counts of the issue call, respectively, fora plain drum having separate tube-landings formed thereinanda plain drum having parallel rows of separate circular tube-landings.
It is contended in behalf of Sinclair that these expressions should be construed to mean separate landings for each tube and separate circular landings for each tube, whereas Engel contends that the claim was intended to mean separate landings adapted to receive tubes, and that when given the latter construction the claims read upon the Engel structure.
The record shows that after the declaraton of this interference a motion to dissolve was brought by Sinclair, and the Primary Examiner in passing upon this motion held that Engel has
separate tube-landings in the same sense that Sinclair has, although two landings are merged into one to afford room for two tubes instead of one.
In respect to count 2 the Examiner stated:
Count 2 differs from count 1 in that the landings are said to be “circular," and that they are “formed partially above and partially below the drum-face.”
The Engel device clearly shows the latter feature and so far as the “circular" form of the landings is concerned, this is regarded as a wholly inconsequential limitation; they might just as well be square, hexagonal, octagonal, or of any other outline, but for convenience they are made circular, this being the best and most obvious manner of stamping them and producing the least strain on the drum.
Engel shows two circular landings merged into one.
The Examiner of Interferences held, upon final hearing of the case, that the counts were not limited by their terms to a separate tubelanding for each tube or to an arrangement by which each of the tubes may be withdrawn from each side of a row, and in support of his decision cited various decisions of this Office and the court to the effect that a claim should be construed as broadly as its terms will warrant. The majority of the Examiners-in-Chief agreed with the Examiner of Interferences in respect to the construction of claim 1, but disagreed with him with respect to claim 2, stating in respect to the latter thatcount 2 differs from count 1 in the particular that the tube-landings are not only separate but are circular. Engel clearly cannot prevail as to this count since the tube-landings revealed by him in his application are non-circular.
The claims that form the counts of this interference are the claims of Sinclair's patent, and these claims were embodied in Engel's application after the issue of Sinclair's patent for the purpose of interference. It is well settled that where a party copies the claim of a patent for the purposes of interference such claim must be read in the light of the disclosure of the patent. (Cherney v. Clauss, C. D., 1905, 635; 116 O. G., 597; 25 App. D. C., 15; Bourn v. Hill, C. D., 1906, 699; 123 0. G., 1284; 27 App. D. C., 291; Sobey v. Holsclaw, C. D., 1907, 465; 126 O. G., 3041; 28 App. D. C., 65.) While it is true that a claim will be given the broadest meaning consistent with its terms, it cannot be enlarged beyond the plain import thereof as set forth in the specification on which the claim is based.
The object of the invention, as stated in the Sinclair patent, isto produce a water-tube boiler of the type aforesaid, so that the tubes may be readily assembled or removed therefrom for repair.
In discussing the prior art the patentee acknowledges that it was old to provide a corrugated stepped drum, each step being adapted to receive a pair of a double row of tubes, there being no tubes in the space opposite the corrugation formed in the surface of the cylinders between the double row of tubes, so that the device could be readily withdrawn. This construction is shown in a patent to Garbe, No.
688,993, and Sinclair, in distinguishing his invention from this patent and from other structures of the prior art, states thatthe opposing surfaces of the upper and lower drums, have formed in them rows of separate circular landings for each water-tube. The landings are parallel with each other and at right angle to the axis of the tubes. A space at least equal to the diameter of the tubes is left between each transverse row. By providing a separate landing for each tube and leaving a space between each transverse row it is possible to dispense with the necessity of forming corrugations in the drum to permit of the insertion or withdrawal from the side of the boiler of the tubes in adjacent rows.
He again states in his specific description of the device shown in the drawing :
A space at least equal to the diameter of the tubes, H, is left between each transverse row so as to permit of the easy insertion or withdrawal of a tube in any row when necessary without disturbing the other tubes. By providing a separate landing for each tube and leaving a space between each transverse row it is possible to dispense with the necessity of forming corrugations in the drum to permit of the insertion or withdrawal from the side of the boiler of the tubes in adjacent rows.
In the claims forming part of the original specification it was clearly pointed out that the landings were so spaced that there is space between each transverse row for the insertion or withdrawal of tubes in the adjacent rowsand the distinction which the applicant sought to point out, in his argument before the Examiner, between his device and the patent to Garbe, which was cited as a reference, is that in Sinclair's device means is provided for the insertion or removal of the water-tubes without corrugating the drumheads, which is accomplishedby providing additional space room between each row of tubes whereby a tube may be withdrawn from “ either side ” of its landing, as pointed out in the claims. No such specific structure is suggested in the specification of Engel. On pages 9–10 of his specification it is stated:
In practice I customarily arrange the tubes of each bank in a plurality of groups, each group comprising a plurality of rows of tubes (two rows, in the construction shown,) each group separated from the adjacent groups by spaces somewhat wider than the distance between the rows comprising each group.
The primary reason why I prefer to arrange the tubes of banks 4 and 5 in groups, as shown, is to facilitate tubing and retubing of the boiler, and to permit the ready removal of any tube when desired. In this connection I commonly employ drums 1, 2 and 3 having tube-sheets of peculiar construction, so that to remove any tube, when it has been freed at one end from the upper drum, for example, its end so freed may be moved slightly to one side, into one of the spaces between groups of tubes, and then the tube may be lifted slightly, so as to unstep it at the bottom, after which it may be removed through one of the spaces 18 between groups of tubes.
It thus appears that while the structure disclosed in Sinclair's specification is confined to “separate circular landings" for each water-tube, whereby the tube may be withdrawn from either side of the landing, the Engel specification does not contemplate a structure of this kind, nor can the tubes of his device be withdrawn from “either side" of a landing in the manner disclosed and claimed by Sinclair. There is no suggestion in the Sinclair specification that his invention covers anything broader than that specifically described therein, and which is carefully distinguished from the prior art of record. Construing, therefore, the claims in the light of Sinclair's specification, in which they originated, I am unable to agree with the Examiners-in-Chief that the subject matter of claim 1 is comprised in Engel's disclosure.
Count 2 is more limited than count 1 in that it is restricted to “ circular tube-landings,” which manifestly are not present in the Engel structure. Inasmuch as the patentee limits himself to this particular construction, it should not be held that such limitation is immaterial, as suggested by the Primary Examiner in his decision upon the motion for dissolution above quoted.
The decision of the Examiners-in-Chief is reversed as to count 1 and is affirmed as to count 2.
EX PARTE JOHNSON.
Decided July 8, 1909.
147 0. G., 770.
PATENTABILITY-REARRANGEMENT OF MACHINE.
The substitution of electrical means for operating a chuck-jaw in place of mechanical means shown in the art Held to require such rearrangement of the machine as to involve invention. APPEAL from Examiners-in-Chief.
Messrs. Dodge & Sons for the appellant. BILLINGS, First Assistant Commissioner:
This is an appeal from the decision of the Examiners-in-Chief affirming the rejection by the Primary Examiner of claims 1, 3, 9, 10, 15, and 17, which are as follows:
1. In a chuck, the combination of a body, a relatively fixed jaw or jaws, a relatively free jaw, and an electromagnet carried by the body, adapted to move the free jaw and to hold it in its working position.
3. In a chuck, the combination of a body portion, a jaw, means for securing mechanical adjustment of said jaw, a second jaw, and an electromagnet work