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                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.

 

                     ******************************

 

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.

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.