DECISION OF THE COMMISSIONER
OBVIOUS: Adaption of Mode of Operating Known Apparatus.
Stopping the suction fans after the circulation fans have
stopped, thereby keeping the fibres in place on the conveyor
to remedy the problem of dispersal of the fibres in the
apparatus when the fans are stopped simultaneously, is obvious
for being nothing more than adapting the operation of the
apparatus according to the dictates of common sense of a
competent person giving his mind to the problem.
FINAL ACTION: Affirmed.
This decision deals with a request for review by the Commissioner
of Patents of the Examiner's Final Action dated May 31, 1972 on
application 063,607. This application was filed in the name of
Charles A. Amos et al and refers to "Dryer Apparatus Control".
In the prosecution terminated by the Final Action the examiner
refused the claims of the application for lack of inventive ingenuity.
In the Final Action the examiner stated in part:
The rejection of the claims is maintained, the reason for
such rejection being lack of inventive ingenuity. The claims
are directed to a method of temporarily stopping and restarting
a dryer comprising a perforated conveyor belt, a circulating
fan, and an exhaust fan. The method being claimed comprises
a series of three procedural steps of stopping the belt, the
circulating fan and then the exhaust fan in sequence and then
reversing these steps to restart the operation. These
procedural steps of stopping and starting the various elements
of the system are accomplished by opening or closing con-
ventional mechanical means or appropriate electrical circuitry
as disclosed on pages 6 and 7 of the application.
The steps of opening and closing circuits to start or
stop the operation of elements of apparatus in a certain
desired sequence are steps which are carried out by workers
in many industrial plants and in view of the obvious nature
of such procedural steps the claims are rejected for lack of
inventive ingenuity.
In the response of August 28, 1972, the applicant stated in part:
No prior art of any form has been cited by the Examiner.
Indeed, Applicant believes that there is no prior art to be
cited either by way of patent specifications or by way of
text books or technical journals. Under such circumstances,
it is respectfully submitted, the rejection of the claims
cannot be validly upheld in the absence of a pertinent
citation to back up such a rejection since such action would
run contrary to every known judicial pronouncement dealing
with lack of inventive ingenuity. It has been held time
and time again that the actual quantum of inventive genius
applied is immaterial when considering patentability. In
other words no matter how simple an invention may appear to
be, it will be patentable if there has been some exercise
of inventive genius.
It may well be obvious to open and close circuits, to
start or stop operations but this is not what Applicant is
claiming, Applicant is claiming the stopping of the operation
in a particular manner and sequence during the drying of staple
fiber and other material, and is so able to inhibit loss of
product due to degradation or overdrying of the product.
Applicant's invention thus facilitates continuous operation.
This application refers to the improved operation of a continuous
dryer. Claim 1 reads as follows:
An improved method for temporarily stopping the operation
of dryer for moist material supplied by a feed means, conveyed
on a moving perforated belt and dried by a heated gas passed by
at least one circulating fan downward through the said conveyor
belt and removed from the space beneath said conveyor belt by
at least one exhaust fan beneath conveyor belt comprising:
(1) stopping the operation of said conveyor belt
and said feed means substantially simultaneously.
(2) stopping the operation of said circulating fan as
soon as said conveyor belt has stopped, and
(3) stopping said exhaust fan as soon as the force of
said circulating fan has substantially stopped.
Having considered the prosecution the Board agrees with the
applicant that the question of obviousness or lack of inventive ingenuity
must be judged by the state of the prior art; however, the examiner has
related to the state of the prior art by reference to the disclosure.
The disclosure, page2, line 10 to page 3, line 3 admits that the
apparatus is conventional; that is, a dryer apparatus is known which
comprises a continuous perforated belt which carries moist fibers
through a dryer zone, supply means for depositing the fibers on the belt,
fan means for circulating heated air through the fibers carried by the
belt, and fan means for exhausting the air from beneath the belt.
in practice, the operation has to bye shut clown at times due
to equipment failure and other reasons (page 2 last paragraph. Also,
in practice, the usual procedure to avoid the material being damaged
by exposure to heat for too long a period was to shut off the heat and
open the doors and vents while leaving the fans an to cool down the
dryer. However, shutting off all the fans at the same time produced
gusts which dispersed the fibers over the inside of the apparatus.
The applicant has decided on a procedure in which, after the supply
means and belt means have been shut off, the blower fans are shut off
before the suction fans. Since no mention is made of the heating weans,
the whole object appears to he to prevent dispersal of the fibers, thus
the essence of the alleged invention lies in the sequence of operating
the fans.
Therefore, the question to be decided is whether the applicant
has made a prima facie showing of ingenuity in the method of operation of
a known apparatus in the manner claimed, consisting of three steps:
(1) Stopping the operation of said conveyor belt and
said feed means substantially simultaneously.
(2) Stopping the operation of said circulating fan as
soon as said conveyor belt has stopped, and
(3) Stopping said exhaust fan as soon as the force of
said circulating fan has substantially stopped.
The court in Somerville Paper Boxes Limited et al v. Cormier (1941)
Ex. C.R. 49 held that, "In order that a new use of a known device may
constitute the subject matter of an invention, it is necessary that the
new use be quite distinct from the old one and involve practical
difficulties which the patentee has by inventive ingenuity succeeded in
overcoming; if the new use does not require any ingenuity but is in a
manner and purpose analogous to the old use, although not exactly the
same, there is no invention."
Furthermore it has been settled that there is no patentable subject
matter in adapting a known device to an analogous use, even if the
adaptation has utility and a certain degree of novelty, unless there are
difficulties to be overcome, or advantages to be gained, and there is
ingenuity in the mode of making the adaption. (Burt Business Forms v.
Autographic Register 1932 Ex. C.R. 39), Since a competent person in
the art would know what adaption of existing apparatus would be
necessary to provide sequential shutting off of the fans once the
suggestion has been made, there is no question of invention in the
mode of the adaption.
As previously noted the applicant has turned off the blower fans
before the suction fans to prevent the dispersal of fibers. Therefore,
the circumstances in the present case are analogous to the question of
obviousness put forward in Siddell v. Vickers, Sons & Co. (1890) 7 R.P.C.
292, "Is the invention so obvious that it would at once occur to anyone
acquainted with the subject and desirous of accomplishing the end?";
and in Savage v. Harris (1896) 13 R.P.C. 364 at 370 in which the question
to be considered is whether the alleged discovery lies so much out of
the track of what was known before or not naturally to suggest itself
to anyone thinking on the subject. It must not be the obvious or natural
suggestion of what was previously known." (emphasis added)
The disadvantage to be overcome is the dispersal problem. Remedying
this problem by keeping the fibers in place with the aid of the suction
fans until the circulation fans have stopped is held to be nothing more
than using known apparatus according to the dictates of common sense, being
of a nature which would at once occur to a competent person operating such
apparatus and desirous of accomplishing the end. This does not, in the
opinion of the Board, merit the distinction of exercising inventive ingenuity
which warrants a claim to monopoly. In making its decision the Board had
in mind, while it is important to encourage inventions because of their
possible influence upon trade and manufacture, yet it is equally
important the manufactures or traders of the public generally, should
not be hampered by the granting of patents where there has been no
exercise of the inventive faculty, (Crossley Radio v. C.G.E. (1936)
S.C.R. 551). If one could monopolize every variation of an existing
method process, manufacture or machine, simply because it had not been
done before, industrial effort would be intolerably impeded.
The Board considers that the solution claimed by the applicant is
one which would naturally have occurred to persons of ordinary intelligence
and acquainted with the subject matter who gave his mind to the problem.
In other words it is held that it is merely an exercise of expected skill,
even though the idea might well be a meritorious one, for a person versed
in the art to operate the fans in a manner to prevent dispersal of the
fibers, and that it falls within that category of a patent of which the
Supreme Court was concerned in the above quotation from the Crossley Radio
v. C.G.E. decision.
Accordingly, the Board is satisfied that the applicant is not by law
entitled to a patent and recommends that the decision of the examiner, to
refine the claims of the application, be upheld. Moreover, it appears
that no patentable subject matter is present and recommends that the
application be refused.
J.F. Hughes
Acting Chairman,
Patent Appeal Board
I concur with the findings 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 12th day of October, 1972.
Agent four Applicant: McCallum, Brooks & Co.