COMMISSIONER'S DECISION
CONFLICT - S. 45(4): Unpatentable.C-claims Refused Under Ss. 42
and 44
On re-examination, the subject matter of the C-claims
refused as unpatentable in view of the teaching of the patent
cited under Section 45(4).
FINAL ACTION: Affirmed.
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This decision deals with a request for review by the Commissioner
of Patents of the Office letter written under Section 45(4) of
the Patent Act dated January 22, 1973 on application 077,716, to
determine whether the Commissioner of Patents ought to refuse
the claims under Section 42 of the Patent Act during conflict
proceedings. This application was filed on March 18, 1970 in
the name of Warwick W. Olsen and refers to "Improvements in And
Relating to Methods Of And Apparatus for Drying Paper."
The Office letter stated in part:
As provided for under Section 45(4) this application is
opened for re-examination with reference to the prior art
cited below. The application contains conflicting claims
C1 to C15 inclusive and claims 1 to 7 inclusive and was
last amended on August 1, 1972.
Reference Applied:
Japanese Utility Model Publication No. - 10082/1967 -
Komatsu - June 2, 1967.
Conflicting claims C1 to C15 inclusive are rejected in view
of the above cited reference. The limitations of claims C1,
C2 and C5 to C14 read directly on the disclosure of the
reference. Claims C3 and C4 are deemed not to be patentably
different. Although these claims include a feature whereby
the longitudinal threads decrease substantially evenly
toward the central section this is deemed but a design con-
sideration which although giving a slightly better moisture
profile would increase the difficulty of weaving such a
fabric. One could carry the alleged invention even further
by varying the number of threads from the extreme edge of
the wire to the very center i.e. decreasing the threads
from the edge to center. Such a refinement is not considered
necessary and would further increase the difficulty of weav-
ing. If such a refinement were deemed essential it would
take no inventive ingenuity to design such a fabric having
studied the wire of Komatsu. The result could well be
predicted.
Claim C15 is considered but the obvious and conventional method
of using the wire claimed. By conventional is meant drying
paper by running the paper over a series of dryer drums using
two felts or wires. Komatsu discloses that his wire is used
for drying paper but the process is so well known he did not
deem it necessary to set forth the method step by step.
The applicant must reply to this letter and either cancel
claims C1 to C15 inclusive or show how their subject matter
is patentably different from the subject matter of the
reference.
The applicant, in the response dated April 19, 1973 to the Office
letter, stated in part:
It is respectfully submitted that the requirements for a prior
publication to constitute "anticipation" under Canadian Law
are well established. For instance, it was stated in Baldwin
V. Western Electric; (1934) S.C.R. 94 at 103: "It is well
established that for a prior patent to constitute anticipation,
the patent must disclose the same or give information equal in
practical utility to that given by the patent in question".
In the present case, the applicant respectfully submits that the
disclosure cited in the communication of January 22, 1973 is not
sufficient to constitute anticipation of the invention recited in
conflict clams C1 to C15. Although the Komatsu utility model
does appear to disclose a dryer canvass with a looser weave in
the central portion than at the edges, a drying wire or endless
belt with the specific structure recited in conflict claims C1
to C15 is not disclosed.
More specifically, conflict claim C1 recites that "the permeability
of the wire varies in the crosswise direction corresponding to the
characteristic moisture profile of a web obtained by a uniform
permeability wire", and it is respectfully submitted that this
specific relationship is not disclosed or suggested by the cited
reference. Similarly, it is recited in conflict claim C5 that
the permeability of the belt "varies selectively" across the width
of the belt, and it is respectfully submitted that this specific
relationship is not disclosed by the cited reference.
This application refers to "Methods of and Apparatus for Drying Paper".
More specifically the applicant employs a screen or drying wire during
the drying process, which has a porosity which varies from a high
porosity at the centre to a low porosity at the edges thereof. Claims
C1 and C3 read:
A drying wire for drying a moist paper web, particularly for
a drying section of a paper making machine, said wire being
of a permeable structure, characterized in that the permeability
of the wire varies in the crosswise direction corresponding to
the characteristic moisture profile of a web obtained by a
uniform permeability wire so that the permeability is greater
in the central portion of the wire than in the edge portions
and the moisture content of the resultant dried web is uniform
in the crosswise direction of the wire.
A drying wire according to claim C1 or C2, characterised in
that the number of the longitudinal threads of tire wire is
greater in the edge portions of the wire than in the central
portion and decreases substantially evenly towards the
central portion of the wire.
This rejection was made under Section 45(4) of the Patent Act
which reads:
Each of the applicants, within a time to be fixed by the
Commissioner, shall eithor avoid the conflict by the amend-
ment or cancellation of the conflicting claim or claims, or,
if unable to make such claims owing to knordledoe of prior
art, may submit to the Corsmissioner such prior art alleged
to anticipate the claims; thereupon each application shall
be re-examined with reference to such prior art, and the
Commissioner shall decide if the subject-matter of such
claims is patentable.
The issue to be decided, with reference to the cited prior art to
Komatsu, is whether the subject matter of claims C1 to C15 is
patentable.
The reference to Komatsu relates to a dryer-canvas for paper manu-
facture and the disclosure of this reference on page 2 line 2 states
the problem "...the center of the paper is usually dried to a harder
finish than the sides." The object of the invention is then stated as:
"Under these circumstances, the present invention aims to provide a
means for drying paper uniformly. That is, the object of the
invention is to provide an improved dryer-canvas for paper manu-
facture by which the moisture permeability at the center is
improved and the paper is dried uniformly on the whole canvas."
In the reference to Komatsu the canvas is divided into at least
three panels: a central panel (a) and two silo panels (b) and (c)
arid the reed count is gradually decreased from both side panels
(b) and (c) to the central panel (a), and the center panel (a)
can be woven with a somewhat lower density. More specifically,
page 2, starting at line 14 of this reference, reads:
As described above, according to the present invention, the
density of the warp of the central panel is gradually lessened
in comparison with that of both side panels; consequently the
moisture permeability of the central panel is improved. As a
result, the present canvas does not have the disadvantage that
the center of the paper will include much moisture, as usually
observed when conventional canvas is used. Thus, by using the
present canvas, the paper can be dried uniformly on the whole
canvas.
Claim:
A dryer-canvas for paper manufacture characterized in that
the density of warp at the center is lower than that at
both sides.
In line with this the applicant stated in the instant disclosure on
page 3 beginning at line 19: "In a further aspect, the invention
consists in a drying screen for a paper making machine which screen
has a porosity which varies from a high porosity at the centre to
a low porosity at the edges thereof."
Accordingly, the solution is basically the same with a variation
in the formation of the canvas or drying wire. The instant claims
specify that the longitudinal threads decrease substantially evenly
towards a center section; while the reference to Komatsu decreases
the spacing in stages of panels (c) and (b) toward the central
panel (a). Admittedly the instant application departs somewhat
on this point from the reference, but which is nevertheless
substantially taught by the Komatsu disclosure which reads:
"...and the reed count is gradually decreased from both sides
of panels (c) and (b) to the central panel."
The applicant has advanced the argument that the reference must
disclose the same or given equal practical utility to that given
in the instant application. In line with this it is held that the
limitations of claims C1, C2 and C5 to C15 read directly on the dis-
closure of the reference to Komatsu. Claims C3 and C4 refer to
limitations with reference to: "...the number of longitudinal
threads of the wire is greater in the edge portion of the wires
than in the central portion and decreases substantially evenly
towards the central portion of the wire." The applicant,
however, has merely followed the teaching of Komatsu by constructing
the canvas or drying wire to follow more closely the moisture profile
of the paper stock.
The Board is therefore satisfied that the subject matter of claims
C1 to C15 is taught by the reference to Komatsu and in accordance
with Section 45(4) of the Patent Act, recommends that the Commissioner
of Patents should affirm the decision made in the Office letter that
the subject matter of Claims C1 to C15 is not patentable.
J.F. Hughes,
Assistant Chairman,
Patent Appeal Board.
I concur with the findings of the Patent Appeal Board and refuse to
grant a patent on the subject matter of claims C1 to C15. 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 in Ottawa, Ontario
this 12th day of June, 1973.
Agent for Applicant
George H. Riches & Associates, Ottawa.