DECISION OF THE COMMISSIONER
IN THE MATTER OF a request for a review by the
Commissioner of Patents of the Examiner's Final
Action under Section 46 of the Patent Rules
(prior to the Amendment by Order-in-Council
P.C. 1970-728 effective June 1, 1970).
AND
IN THE MATTER OF a patent application serial
number 916,378 filed November 13, 1964 for an
invention entitled:
FOLDABLE STANCHION
Patent Agent for Applicant:
Messrs. Alex E. MacRae & Co.,
Ottawa Ontario.
This decision deals with a request for a review by the
Commissioner of Patents of the Examiner's Final Action rejecting
Claim 1. The request was made in accordance with Section 46
of the Patent Rules (prior to amendment by order-in-council
P.C. 1970-728 effective June 1, 1970.)
The Patent Appeal Board has reviewed the prosecution of
this application and the facts are as follows:
Application 916,378 was filed November 13, 1964 in the
name of R.L. Ferris and refers to a Foldable Stanchion.
In the prosecution terminated by the Final Action, the
examiner refused to allow claim 1 of the application on the
ground that claim 1 fails to define the latch and support
means, which represent the single improvement area over the
prior art, in distinct and explicit terms. Applicant has
disclosed an improvement over the prior folding fifth wheel
supports, which is a single releasable latch and support means,
however, claim 1 fails to differentiate the improvement from
the prior art. Finally claim 1 used the meaning of the term
"latch" in a manner inconsistent with its meaning in the other
claims and also without proper support from the disclosure.
In applicant's letter of January 7, 1970 wherein the review
by the Commissioner was requested, he argued:
(a) Kavanaugh shows a stanchion having a pair of pivoted
struts in triangular relation with one strut being formed
by upper and lower pivotally connected members, and in
this regard applicant's structure may be generally similar
to Kavanaugh. On the basis of this similarity, it is
not believed proper to hold the claim invalid.
(b) Considering applicant's invention as a whole, it cannot
be seen why the Examiner believes applicant's releasable
latch feature to be obvious. In the present invention,
the rod 48 of the latch means is connected to the strut
13 by way of intermediate member 16 and through its
spring loaded connection to strut 12, the latch means
urges and maintains the stanchion erected. As described
in the disclosure, page 5, when the slide pin 43 is held
within the forward end of the horizontal run 46 the
intermediate member 16 is slightly tilted with respect
to the perpendicular. With applicant's latch means, there-
fore, the stanchion is very positively maintained in its
operative position.
(c) One must consider a claim with reference to the entire
disclosure (see Supreme Court case of Metalliflex v. Rodi
& Wienenberger Aktiengesellschaft, 35 C.P.R., p. 49), and
taking into account the above described features, it is
believed that the feature of the latch means being adapted
"to urge and maintain" the strut members in said linear
operative positions is a significant distinguishing
feature. Kavanaugh's hydraulic cylinder cannot be termed
a latch means, and certainly it does not function to
"urge and maintain" the linear operative position of the
strut members. This is true because any fluid cylinder
is subject to leakage or bleeding, and the cylinder
cannot be considered a positive latching device that would
preclude accidental falling of the stanchion.
(d) Moreover, it is believed of even more significance, that
claim 1 defines the latch means as having "longitudinal
movable means responsible to a longitudinally applied
force independent of said stanchion to cause said upper
and lower strut members to be released from said
operative position..." This means includes rod 48, of
course, having push button 61 which may be positioned
to be engaged by a member carried by the tractor when the
tractor is backed towards the trailer supported on the
erected stanchion so as to cause the stanchion to collapse
as the tractor moves into its connecting position. This
is an important advantageous feature of the present
invention since the stanchion is automatically removed
from its tractor supporting position as the tractor is
backed into place. No such feature is taught in Kavanaugh's
structure which uses a jacking mechanism which presumably
must be manually actuated.
Upon review of the grounds for rejection set forth by the
examiner, as well as all the arguments presented by the applicant,
I am satisfied that the rejection is well founded.
Claim 1 of the application, which is rejected, reads as
follows:
A stanchion for supporting and hitching a trailer
on a railway car having a base, said stanchion comprising
first and second strut means positioned in triangular
relation when in an erected operative position, a fifth
wheel plate, said strut means pivotally supporting said
fifth wheel plate, first pivot means connecting said
first strut means to said base, said second strut means
including upper and lower strut members having adjacent
ends, second pivot means connecting said adjacent ends
whereby said strut members may be pivoted from a
substantially linear operative position to a folded
position, said upper strut member being pivotally connected
relative to said first strut for movement therewith,
third pivot means connecting said lower strut member to
said base in longitudinal spaced relation relative to
said first pivot means, and releasable latch means
connected to said second strut means to urge and maintain
said strut members in said substantially linear operative
position, said releasable latch means including longitu-
dinally movable means responsive to a longtudinally
applied force independent of said stanchion to cause said
upper and lower strut members to be released from said
operative position and pivot about said second and third
pivot means so that said first strut means is moved
about said first pivot means and said stanchion is
collapsed.
The prior art, United States patent 2,835,209 to Kavanaugh
May 20, 1950, discloses a folding support, or stanchion, for
a fifth wheel plate to which a semi-trailer vehicle is attach-
able in the customary manner, the stanchion being attached to
the deck of a railway car. The disclosed stanchion comprises
two sets of legs pivoted at a common pivot to the fifth wheel
plate at their upper ends, and pivotally attached to the deck
at spaced locations, so that the legs are inclined to one
another. One leg has a mid-length "knee" joint to provide
folding capability for the stanchion. These features are
identical to applicant's device and are defined by claim 1 of
this application. Kavanaugh also shows an hydraulic jacking
mechanism attached between the deck and the knee-joint pivot.
The operation of the device and its general structure is
obvious from the drawings and disclosure.
Applicant has contended that the claim must be read as
a whole when considering the prior art; I find the examiner
has made no attempt to dissect the claim. However, it is well
established that a claim must clearly differentiate what is
new from what is old. The claim must avoid the mistake of
being couched in such broad terms that it will embody both the
principle of the improvement and the prior art (see Bergeron
v. De Kermor Electric Heating Co. (1927) Ex. C.R. at 198).
Applicant has stated that the feature of the latch means
being adapted "to urge and maintain" the strut members is a
significant distinguishing feature. However, this recital
in the claim can also be read on the patent where the latch
means is the hydraulic or mechanical jacking mechanism
mentioned in the disclosure. As is widely known, an hydraulic
jack may have a valve in its hydraulic fluid line to provide
a releasable means to maintain the piston in the desired
position. Figure 2 of Kavanaugh shows such a valve for another
hydraulic jack. The automobile hoist in garages is a well
known hydraulic jack having a valve for maintaining the hoist
in intermediate positions, and also having mechanical locking
fingers for maintaining the hoist in the extreme extended
position.
Claim 1 requires the latch means to urge and maintain
the strut members in substantially linear operative position.
The hydraulic jack of Kavanaugh is shown in a position to
urge and maintain the struts linear. The stated intent of the
patent is to urge in the words of column 2 line 2 "and raised
by ... hydraulic...mechanism". The intent to maintain the
stanchion in operable position is obvious and the means are
well known.
Applicant has argued that a matter of even more signi-
ficance is the recital concerning "movable means responsive...
applied force independent of said stanchion...". Applicant's
December 17, 1969 letter defined the "latch means" of claim
1 as including rod 48, push button 61 and intermediate support
member 16 connecting to strut 13.
In a similar manner, the latch means of Kavanaugh includes
the hydraulic cylinder with a piston, a "longitudinally movable
means", being acted upon by hydraulic fluid from an external
source, as exemplified in Fig. 2 of the patent,the piston being
"responsive to a longitudinally applied force independent of said
stanchion". The claim calls for this action to "cause... strut
members to be released from said operative position" which any
double acting piston and cylinder unit will provide. That is,
claim 1 fails to patentably differentiate what is new, as
disclosed, from what is old, as represented by the patent to
Kavanaugh and by common knowledge of hydraulic piston and
cylinder units.
The second objection to claim 1 was on the grounds that
the word "latch" is used therein in a manner which gives it
a meaning inconsistent with its meaning in the other claims,
and that this meaning does not have the support of the disclosure.
Claim 1 recites a "latch means" which includes the essential
strut 16 within its scope, but claims 2 to 8 explicitly separate
the supporting strut 16 from the elements which are included
under the term "latching means". Lines 1 to 5 of page 6 of the
disclosure state that a "latch means" is necessary to act on strut
16, and lines 5 to 7 state definitely that the latch arrangement is
a group of elements separate from vertical strut 16. The latter
statement is in agreement with page 4 of applicant's December
17, 1969 letter in the words "... the disclosed latch means
is connected to the strut 13 by way of intermediate member 16".
Such construction is contrary to claim 1 in lines 14 and 15
which recites "releasable latch means connected to said second
strut means (14 and 15 Figure 1), and by that recital necessarily
includes vertical strut 16 within the meaning of "latch means".
I am satisfied that claim 1 fails to define the latch and
support means, which represent the single improvement area over
the prior art, in distinct and explicit terms or in terms which
do not encompass the prior art. Furthermore I find that claim 1
used the meaning of the term "latch" in a manner inconsistent
with its meaning in the other claims. I recommend the decision
of the examiner be upheld.
R.E. Thomas
Chairman, Patent Appeal Board.
I concur with the findings of the Patent Appeal Board
and confirm the Final Action refusing to allow claim 1, and
allowing claims 2-8 inclusive on the grounds set forth.
Applicant has six months in which to appeal this decision
in accordance with Section 44 of the Patent Act or to remove
the rejected claim, otherwise the application shall be deemed
to have been abandoned.
Decision accordingly,
A.M. Laidlaw,
Commissioner of Patents.
Dated at Ottawa, Ontario
this 22nd day of December, 1970