DECISION OF THE COMMISSIONER
SECTION 43: Obviousness Is Not In Issue.
The question under S.43 is not one of obviousness,but whether
the invention claimed is described in the citation. The
applicant's mode of crab steering is not described in the
citation describing a different mode as essential.
FINAL ACTION: Reversed
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 975,918 filed November 19, 1966 for an
invention entitled:
FLUID STEERING SYSTEM
Agent for Applicant
George H. Riches,Q.C.
Toronto, Ontario.
This decision deals with a request for review by the
commissioner of Patents of the Examiner's Final Action dated
April 2, 1971 on application 975,918. This application was
filed in the name of Marcus L. Conrad and refers to "Fluid
Steering System".
The Patent Appeal Board conducted a hearing on September
16, 1971. Mr. R.E. McKenzie represented the applicant.
In the prosecution terminated by the Final Action the
examiner refused the application on the grounds of obviousness
in view of prior art. The prior art cited is as follows:
United States Patent
3,185,245 May 25, 1965 C1. 180-79.21 Hoyt
In the Final Action the examiner stated:
The applicant has defined crab steering in the first
paragraph of page 1 of his disclosure in the following
terms. "By crab steering is meant oblique or lateral
steering wherein all of the wheels of the vehicle
are turned simultaneously in the same direction with
the result that the vehicle moves sidewise without
changing its reading. The applicant's steering
system does not satisfy this definition for it does
not turn all the four wheels simultaneously, but
first steers one set, front or rear wheels,to one
site using the 4-wheel drive mode, and then by
switching to the 2-wheel drive mode, turns the other
pair of wheels to the same side. During the subse-
quent crabwise movement of the vehicle, the wheels can-
not be steered as one pair of wheels is locked.
Applicant's claim 1 referred to the Hoyt patent:
A steering system comprising first fluid actuator
means (28 and 29) arranged for pivoting the two wheels
at one end of the vehicle, second fluid actuator
means (30 and 31), for pivoting two wheels at the
other end of the vehicle, a source (pump 40) of
pressurized fluid, an operator's steering device (58)
connected for admitting pressurized fluid from the
said source for operating the said fluid actuator
means,first conduit means (52, 56) connected between
said operator's steering device and said first fluid
actuator means for transmitting fluid therebetween,
a valve (34), connected in said first conduit means,
second fluid conduit means (66, 72) connected between
said valve and said second fluid actuator means for
transmitting fluid therebetween, the said valve in
one position (i.e. when valve 34 is slid up from the
position in figure 1, of Hoyt) connecting the second
fluid actuator means in circuit with the said first
fluid actuator means,and in a second position, (the
position shown in Fig: 1 in Hoyt ) bypassing the fluid
actuator means.
It is obvious that said one position in the preceding
paragraph is the position for 4-wheel steering while
the said second position is the position for 2-wheel
steering. These two positions may be used for crabwise
movement of the vehicle in the same manner as in appli-
cant's arrangement which calls for location of one
pair of wheels by the valve positioning for 4-wheel
steering and the positioning of the second pair of
wheels by the valve positioning for two-wheel steering.
The third position of Hoyt's valve is only necessary
if crab steering is desired. Applicant has eliminated
the crab steering function and has no need for the
third valve position.
Recapitulating what has been shown in the above para-
graphs, the Hoyt patent teaches a device with a 3-
position valve and associated electrical circuitry,
with which three steering modes are accomplished,
namely two wheel steering, conventional four wheel
steering and crab steering. The applicant teaches
a device with a 2-position valve and without the
electrical circuitry, but that device will not achieve
crab steering according to applicant's definition.
It will permit crabwise movement of the vehicle by
manipulation of the valve positions. Exactly the
same function can be performed as demonstrated above,
by the use of Hoyt's device, using only two positions
of his valve and eliminating the electrical circuitry.
The applicant has therefore not retained all the
essential functions of Hoyt's device. He has dropped
the crab steering function, and eliminated the structure
necessary to accomplish the function he has dropped.
In the response of June 30, 1971 the applicant stated:
It is submitted that the Examiner, in order to apply
claim 1 which was the subject of that action, to the
Hoyt structure, had to modify Hoyt in order to
eliminate certain specific elements which were
essential to the operation of Hoyt. It is apparent
from a reading of the disclosure and claims of Hoyt
that the electrical power source and circuitry are
essential elements.
The Examiner in the Office Action under review, takes
the position that the "applicant has eliminated the
crab steering function and has no need for the third
valve position". In taking this position, the
Examiner relies entirely on the prior art definition
of crab steering to which the Examiner refers on the
first page of the Office Action. As a matter of fact,
the definition of "crab steering" in the disclosure,
page 1, lines 4 to 6, is not the applicant's definition
of "crab steering", but the definition of the prior
art. In brief, the first paragraph of the disclosure
may be termed "background" and is certainly not intended
nor is it possible to construe it as the applicant's
definition. For example, Hoyt falls within the defin-
ition. It is submitted that the Examiner is in error
when he couples this definition with the disclosure
of applicant's structure. The Examiner's rejection
of the application and the claims are based on this
error. The second paragraph on page 1 of the
disclosure makes it abundantly clear that applicant
retains the three steering modes but does so in a
simpler manner.
The construction and operation of applicant's apparatus
must be understood from a fair reading of the entire
disclosure. It is clear from the disclosure that
applicant has not eliminated the crab steering as
suggested by the Examiner. Reference is made to
applicant's disclosure, page 6, starting at line
12 which clearly describes the operation of applicant's
invention " when crab steering is desired".Further
reference to applicant's "crab steering" is found on
page 8, starting at line 22.Consequently, the Examiner
is in error when he says that applicant "has dropped
the crab steering function, and eliminated the structure
necessary to accomplish the function he has dropped."
Applicant respectfully submits that applicant, while
dropping all the electrical circuitry and the three-
way valve, and providing a simpler apparatus, has
retained all three steering modes,including "crab
steering .
After reviewing the ground for rejection set forth by the
examiner, as well as the arguments both oral and written set
forth by the applicant, I am not satisfied that the rejection
is well founded.
The application refers to a Fluid Steering System. Claim
1 reads as follows:
A steering system for a four wheel vehicle compris-
ing, first fluid actuator means arranged for pivoting
the two wheels at one end of the vehicle, second
fluid actuator means arranged for pivoting the two
wheels at the other end of the vehicle, a source of
pressurized fluid, an operator's steering device
connected for admitting pressurized fluid from the
said source for operating the said fluid actuator
means, first conduit means connected between the
said operator's steering device and the said first
fluid actuator means for transmitting fluid there-
between, a two-position valve connected in the said
first conduit means, second fluid conduit means
connected between the said valve and the said second
fluid actuator means for transmitting fluid there-
between, the said two-position valve in one position
connecting the said second fluid actuator means in
circuit with the said first fluid actuator means
and in the other position bypassing the said-second
fluid actuator means.
At the hearing the Patent Agent reviewed the stand of the
applicant and discussed the highlights of the prosecution. He
also presented argument and objected to the stand of the
examiner with respect to the rejection on obviousness.
First, I will comment on a statement made by the applicant
in which he submits that the proper way to deal with the
question of obviousness is to determine whether the claims
of Hoyt when fairly construed in the light of the Hoyt disclosure
read on applicants disclosed structure. I find that I cannot
agree with this conclusion. The matter of obviousness is to
be judged by reference to the "state of the art" in the light
of all that was within the teachings of the prior art and
previously known by persons versed in that art.
I will now consider the grounds of rejection which is based
on obviousness in view of the prior art - U.S. Patent 3,185,245
May 25, 1965 to Hoyt. This application was filed November 19,196
with a priority date of December 27,1965. It is noted that the
provisions of Section 43 of the Patent Act apply to the cited
reference. As noted above the examiner refused the application
on the grounds of obviousness in view of the patent to Hoyt.
However, the question is not one of obviousness but whether
the invention claimed in the application is described in the
patent to Hoyt. The examiner further stated that the reference
when modified, could carry out the invention as claimed by
applicant; this is not important, as mentioned previously this
reference must describe the invention.
I note that in the disclosure to Hoyt, with reference to
modes of steering, page 1 reads:
In steering systems capable of two or more different
modes of steering some kind of means must be provided
for maintaining the wheels synchronized when shifting
from one mode of steering to another.
In applicants type of crab steering or movement there is
no simultaneous turning (synchronization) of the wheels of
the vehicle. Applicants crab position of the wheels is
achieved by first moving (simultaneously) the front wheels in
one direction and the rear wheels in the opposite direction (as
for four wheel steering) then, locking the rear wheels in that
position and then moving the front wheels in the opposite
direction so they are facing the same direction as the rear wheels.
In this mode of crab steering or movement there is no synchron-
ization of the wheels which is referred to as a must in the
above reference to Hoyt and which is also indicated as prior
art.
Therefore, I have concluded from the above that the
reference to Hoyt does not describe the invention as claimed
in this application; thus, the provisions of Section 43 do not
apply and this reference does not, in itself, prevent applicant
from obtaining a patent for the subject matter claimed.
R.E. Thomas,
Chairman, Patent Appeal Board .
I concur with the findings of the Patent Appeal Board
and withdraw the Final Action. I am returning the application to
the examiner for resumption of prosecution.
Decision accordingly,
A.M. Laidlaw,
Commissioner of Patents.
Dated at Ottawa,Ontario,
this 13th day of October, 1971.