DECISION OF THE COMMISSIONER
OBVIOUS: Difference Dictated By Design Consideration, Appli-
cant's argument that the structure of the citation is inoperative
not accepted. The different positions of the analogous parts
of the citation and this application are dictated by design
considerations only, and does not make a new combination.
FINAL ACTION: Affirmed.
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.
AND
IN THE MATTER OF a patent application serial number
964,734 filed July 6, 1966 for an invention entitled:
HARROW DRAW BAR
Agent for Applicant
Messrs, Cecil C, Kent & Associates,
Winnipeg, Manitoba.
This decision deals with a request for a review by the
Commissioner of Patents of the Examiner's Final Action of
April 30, 1971 rejecting the application.
Since the applicant did not request a hearing before the
Patent Appeal Board, the prosecution of the application has
boon reviewed and the facts are as follows:
Application 964,734 was filed July 6, 1966 in the name
of Abraham W, Hiebert and refers to a Harrow Draw Bar.
In the prosecution which terminated in the Final Action
the Examiner refused to allow the application for lack of
invention in view of the disclosures of two references:
Canadian Patent 671,719, Oct, 8/63 to Marvin
U. S, Patent 2,944,615, July 12/60 to Clark
Applicant's device is a drag harrow which has a draw bar
with a center section and two pivoted wing sections provided
with a wheel at the outer end of each wing, The center section
is mounted on a towing section with the wings extended in line
when in working position, When it is desired to tow the harrow
from one location to another the draw bar is rotated around
pivots on the towing frame. This both elevates the harrow
sections clear of the ground and also raises the draw bar relative
to the ground, The wing sections are then pivoted to a trailing
position and their wheels are pivoted to an in-line position.
During the prosecution the examiner held that the Marvin
reference disclosed the same arrangement for rotating and
raising the draw bar, Marvin discloses the arrangement in connection
with a cultivator whereas applicant uses the arrangement in a
drag harrow, however I consider these two implements analogous in
this instance since the specific earth working tool is not a vital part
of the invention.
The applicant repeatedly argued that the Marvin reference
was improper because in his opinion Figure 5 shows an incorrect
positioning of the parts and the arrangement is thus inoperative.
In my view the applicant does not understand the geometry
of Marvin's arrangement, Referring to the patent, Figure 1
shows wheel 18, stub shaft 19 and arm 20 supporting wing beam
11 in line with center beam F3 (see also page 4 lines 21 to 23),
Figure 5 is an accurate partial elevation of Figure 1 and it
should be obvious that the outer end of wing beam 11 is at the
same elevation above ground as center beam 8. When beam 8
through bracket 9 is rotated 90· around pivot 10, wing beam 11
and arm 20 are also rotated 90· but, and this is the point
which applicant has failed to grasp, arm 20 will assume a
position which is at a small trailing angle to the vertical
and the wing beam 11 is thereby maintained in line with center
beam 8 prior to being folded into towing position, This may
be readily seen by making a tracing of parts 8, 9, 10, 18 and
20 as shown in Figure 5 and superimposing the tracing on Figure 6
with 8, 9 and 10 coinciding.
Furthermore when Marvin's beam 8 is rotated into raised
position his stub shafts 19 act as "fulcrum means" in the same
manner as applicant's wheel shafts 32.
In my view the only difference between applicant's arrange-
ment and that of Marvin is that applicants wheel shafts are
offset upwardly from the wing beam whereas Marvin's wheel shafts
are offset downwardly from the wing beam, Such a structural
difference is obviously dictated by design considerations,
Marvin's three part beam is located in a position above the
axles of the wheels 18 because the towing frame is suspended
above the axle of the main wheels, Applicants draw bar is located
in a position below the axles of the wheels 34 because
his towing frame is suspended below the axle of the main wheels.
It is noted that applicant has incorrectly shown the axle below
the towing frame in Figure 1 and Figure 2. It is clear to me
that applicant's positioning of the wheel shafts offset upwardly
constitutes a mere alteration of the relative position of parts
that have been used before in combination for a purpose analogous
to that claimed and is therefore not a new combination.
I have studied the Clark reference cited by the examiner
and although it is pertinent I do not consider that it adds much
to the rejection.
As a result of my review of the examiner's rejection and
the applicant's arguments I find that the rejection is well
founded and that the applicant has not disclosed or claimed
subject matter that is inventive over the reference, particularly
the Marvin patent.
I therefore recommend that the decision of the examiner,
rejecting the application, be upheld.
R. E. Thomas,
Chairman, Patent Appeal Board.
I concur with the finding of the Patent Appeal Board and
refuse the grant of a patent, The applicant has six months
in which to appeal this decision in accordance with Section 44
of the Patent Act.
Decision accordingly,
A.M. Laidlaw,
Commissioner of Patents.
Dated at Ottawa, Ontario,
this 18th, day of August, 1971.