COMMISSIONER'S DECISION
Obviousness: The claims were refused for lack of patentable subject
matter over the teachings of the prior art and common
general knowledge.
The application relates to a stove having a pull-out oven, and a counter-
ballast weight at the rear of the stove. The applicant did not rely on
the pull-out oven for novelty. He overcame the instability of the stove
by adding ballast in the same manner as is employed in any mechanical art.
FINAL ACTION: Affirmed. The Board also recommended the refusal of the
application.
This decision deals with a request for review by the Commissioner of
Patents of the Examiner's Final Action dated February 8, 1974, on
application 103,770 (Class 312-78). The application was filed on
January 27, 1971, in the name of Heinrich Detterbeck, and is entitled
"Household Appliance Such As A Dishwasher, Cooking Stove Or The Like."
The Patent Appeal Board conducted a Hearing on June 18, 1975, at
which Mr. H. O'Gorman represented the applicant.
The application relates to a stove having a carriage including the oven
door, slidable into and out of the oven, where the stove is provided
with a ballast weight in the form of a flat rectangular member mounted
between two upright frame members at the rear of the appliance.
In the Final Action the examiner refused the claims for failing to define
a patentable advance in the art in view of common general knowledge and
the following United States Patents:
2,701,728 February 8, 1955 Miller
3,029,088 April 10, 1962 Loof
In that action the examiner stated (in part):
In the letter of response dated August 28, 1973, applicant
argues that applicant's use of ballast is unobvious in re-
lation to the use of ballast in the structures shown in the
aforecited references. In reply to this, the use of ballast
is known generally, and merely to specify a ballast for a
particular device, such as a stove, is not invention. Again
these two references are cited merely as examples of prior art
showing that idea of ballasting is old and well known.
The idea of using weights on one side of a device, to
keep the device form tipping, does not constitute patent-
able invention, and the structural details involved in
implementing the idea, such as the channel-shaped element
between structural members, etc., are merely a matter of
structural design, obvious to any ordinary workman skilled
in the art. Counterweights are used in a very great
variety of devices: pedals, cranks, elevators, brackets,
supports, beds, cranes, trucks, record players, weigh
scales, etc. The function and use of counterweights are
so very well known and so thoroughly widespread that any
technician with ordinary skill in his art is expected to
use a counterbalance if it serves his purpose better or
more economically than the presumably numerous other obvious
alternatives which may be resorted to in order to achieve
the same effect. The idea of a ballast is not inventive,
and if a ballast is to be used in any device, then as a
matter of mere routine design some means will be provided
to support the ballast; applicant has not disclosed any
ballast supporting structure that is inventive.
1n view of the foregoing, claims 1 to 9, which are directed
to the idea of having a ballast and to the support means for
the ballast, are rejected.
Claim 9 includes the feature whereby the ballast means com-
prises "a suitable heat reservoir", a phrase which recites a
functional result only, rather than clear and explicit
structure. Furthermore, this result is not novel or unexpected;
any ballast or mass at the rear of a hot stone will store
heat. Furthermore, if claim 9 is intended to be read as recit-
ing some specific structural features for augumenting the heat
storing capabilities of the ballast, then these structural
features are not clearly and fully described and supported by
the disclosure. Claim 9 is rejected as indefinite and as
unsupported by the disclosure; Claim 9 fails to meet the re-
quirements of Section 36 and Rule 25.
In summary, the idea of a ballast, the combination of a ballast
with an appliance, and the structure provided to retain the
ballast on the appliance, as disclosed or as claimed in claims
1 to 8, do not constitute anything that is new, useful and
unobvious in relation to the cited prior art. As well, the
heat storing feature, as recited in claim 9, is old, obvious,
indefinite, and not clearly and fully supported by the disclosure.
The application is again rejected.
In a response dated June 10, 1974 to the Final Action the applicant
stated (in part):
Stoves were heretofore known with pull down doors allowing
access to the oven portion. However, there were difficulties
with pull down doors as will be readily confirmed by any user.
Access to the food within the oven and removing the cooked food
was difficult and awkward and a new technique was called for.
The solution was a gull-out drawer which overcame these problems
but, unfortunately, caused further difficulties because of the
large moment force which was applied when the pull out
drawer was in its open position. Obvious solutions such as
increasing the dead-weight of the stove or anchoring the
stove to the floor were considered and rejected due to the
increased manufacturing costs, and lack of portability in
the case of added bulk, and a lack of positioning flexibility
in the case of anchorage means.
The solution arrived at was ingenious. By providing a weight
on the rear of the stove which could be readily removed, the
remaining problems were overcome. The stove not only could
be manufactured from previously used materials with a
minimum of design modification, but it could also be position-
ed in a kitchen without regarding the limitations necessitated
by anchorage modifications to the walls or floor.
...
Applicant recognizes that the prior art discloses the use
of ballast in heavy construction vehicles intended for lifting
and transporting loads. Nowhere, however, was prior art
revealed showing the use of ballast on stationary objects,
such as machines, furniture, and, in particular, stoves,
and it is respectfully submitted that household appliances are
remarkably different in purpose and design than heavy equipment.
When an article is intended to remain stationary, there is
little objection to the use of bulky material to provide stability
since the only portability considerations are those involved
in moving the apparatus from its place of manufacture to its
final position. Accordingly, devices such as machine tools or
lathes are commonly manufactured from massively proportioned
materials which allow stability. However, when the apparatus
is adapted to be continuously mobile, different considerations
prevail as is well stated in Miller, Col. 1, lines 29-44, and
ballast may be very useful to give flexibility to the vehicle's
operation. Where a device is not used under a variety of
operating conditions, however, such as a stove, the use of.
ballast is simply not suggested either by the prior art or by
common general knowledge. This is evidenced by the attempt to
avoid ballast in stationary operations, such as working a
backhoe, where, because of the disadvantages inherent in ballast
use, extensible legs are used which provide the necessary
stability without reducing, the load-carrying capacity of the
vehicle. Accordingly, applicant reiterates his argument that
the use of ballast in stationary devices is not disclosed by the
prior art and that the reason such devices are not shown is
clearly evident because of the lack of need for flexibility in
their operation.
...
Factors to consider in determining whether the invention is
obvious in view of the prior art (i.e., the prior art must be
that involving heavy equipment as no prior art concerning the
use of ballast on any household appliance was found) include
the following:
1. A long-felt want for the invention in question, Paper Sacs
Proprietary Ltd. v. Cowper, 53 R.P.C. 31 at 54 (P.C. 1936).
2. An outstanding unsolved problem. The King v. Uhlamann
Optical Co. 10 Fox 24 at 44 (Ex. Ct. 1949).
3. Commercial success. Spun Rock Wools Ltd, v. Fiberglas Ltd.,
3 Fox 157 at 165 (S. Ct. 1943).
4. Displacement in the marketplace. Defrees and Betts v. Dominion
Auto Acc. Ltd., 25 Fox 58 at 94 (Ex. Ct. 1963).
5. Adoption in improvement in the prior art. Clark et al v.
R.J. McDermitt Co., 26 Fox 158 at 170 (Ex. Ct. 1964).
It has been demonstrated above that all of these conditions have been
fulfilled by the present invention, save commercial success and dis-
placement of other stoves in the marketplace. In fact, the commercial
success of the stove has also been established. The applicant has
sold approximately 80,000 of these stoves per year. This accounts
for one fourth of the applicant's stove production and 6% of all
stoves manufactured in West Germany. These figures become even more
significant when it is realized that the stove is a luxury item
and consequently has a much higher selling price than ordinary stoves.
The Miller citation relates to a weight selection mechanism for tractors
and particularly to a combination weight box and bumper for mounting on the
front end of agricultural type tractors: The Loef citation deals with
ballast weight added to a lifting and conveying vehicle. As mentioned the
application relates to a store having an oven which slides into and out
of the stove, together with a ballist weight at the rear of the stove so
it won't tip forward when the oven is pulled out.
The question to be considered is whether the applicant has made a patentable
advance in the art.
The object of the invention was to design an appliance of the sliding door
type in such a manner that "the stability thereof is ensured, without the
need for anchoring it at the site of installation; even when the carriage is
fully extended to a normal degree. This object is achieved, according to the
invention, by providing a ballast weight in the form of a flat rectangular
member located between upright frame members of a supporting frame at the
rear of the appliance."
It is noted that the precise construction of the stove originally described
was not important to the concept envisaged as inventive in the original dis-
closure. A pullout door and oven tray is shown merely schematically in
figure 1.
The applicant stated "that a new technique was called for to make access
to food in an oven more convenient. The solution was a pull-out drawer which
overcame these problems but, unfortunately, caused further difficulties
because of the large moment force which was applied when the drawer was in
the open position." The applicant, however, stated at the Hearing that
"he was not relying on the pull-out oven per se for novelty."
1n other words when the applicant developed a pull-out oven drawer, which
is substantially equivalent to pull-out drawers in dishwashers, he created
the problem of instability. A designer of such a device, however, must
from a consideration of the most elementary mechanics provide sufficient
stability so the appliance will not tip over when the drawer is pulled out,
otherwise, the appliance will not be satisfactory. Whether the structure
provided to yield this result is described as a ballast or not, is of no con-
sequence. The fact is that all the mass which remains to the rear of the
front legs serves as ballast, whether it is so labelled or not.
The applicant states that, "obvious solutions such as increasing the dead-
weight of the stove or anchoring the stove to the flour were considered and
rejected due to the increase manufacturing costs, and lack of portability in
the case of added bulk, and a lack of positioning flexibility in the case
of anchorage means." Here it is noted that the applicant considered that
an obvious solution was to add "dead-weight to the stove." This of course
is in reality what he has done, but in a particular manner.
When the applicant created the problem of instability, he selected one of
the many obvious solutions to overcome that problem. It is a fact that both
simple and complex counterweights are used in nearly every mechanical art
to provide stability. In our view therefore, any inventive step would
have to reside in the use of inventive skill to overcome the installation
problem.
We think it pertinent to refer to the reasoning of the Supreme Court in
Crossley Radio v Canadian General Electric (1936) 551 at 559 where a test
of obviousness was put forward, using the words of Lord Chelmsford in
Penn v. Bibby, "...the design does not appear to me to be so much out of
the track of the former use as not naturally to suggest itself to a person
turning his mind to the subject." Or from the same case, using the words
of Lord Shaw in London General Omnibus Company v. Bonnard, "...the design
might have well occurred to an intelligent person without any exercise of
that invention (degree of ingenuity) which is necessary as the ground of a
patent."
Claim 1 reads:
A stove including a carrier member, a carrier member frame
and guide members connected to said frame adapted to co-act
with said carrier member to enable front loading of said
stove, said carrier member being provided with vertical sup-
port means at the rear side of said stove, adapted to seat
and positively receive flat ballast means sufficient to impart
stove stability.
In essence the claim is directed to any stove with an opening in the front,
support means in the rear portion, and ballast means added to the support means.
As mentioned the applicant stated it was obvious to increase the dead weight
of the stove in order to solve the stability problem. This is specifically
what this claim calls for, but in a specified manner, He has overcome the
instability of the stove by adding ballast in the same manner as is employed
in any mechanical art, and which was shown in the cited references. The
function and use of counterweights are well known and any technician with
ordinary skill in his art would use a counterbalance if it serves his
purpose better or more economically than other obvious alternatives.
In our view therefore claim 1 does not cover a patentable advance in
the art.
Claims 2 to 8, which depend directly or indirectly on claim 1, introduce
securing arrangements and mere design features. There was obviously no in-
ventive skill required in securing ballast to the frame of the stove. The
reasons for refusing claim 1 apply equally to these claims.
Claim 9, which depends on claim 1, characterizes the ballast as being a
heat reservoir. It is known that any general mass will act as a heat sink.
However, there is no structural features which would add patentability to
rejected claim 1.
The applicant argues that there was "a long-felt want for the invention in
question," and that the invention was a "commercial success." The applicant
suggested at the Hearing that the pull-out oven feature would likely
enhance the sales of the stoves. Commercial success, of course, may be
dependent on many factors. In our view the appearance of the stove in
general, color, lights, dials etc., and the pull-out oven feature would en-
hance the sale of the stove. It would not result from a concealed counter-weight,
about which most buyers would be unaware. In any event the claims do not
relate to a pull-out oven, nor does the applicant deem this a novel feature.
In our view, the claims lack patentable subject matter. As there is no
further patentable subject matter disclosed in the application, the Board
is satisfied that the solution to the newly created problem of instability
does not lie so far outside the track of what was done by persons acquainted
with the art that would not naturally occur or suggest itself to such
persons thinking on the subject. It comes within the category of a matter
to which the Supreme Court referred in Crossley Radio v Canadian General
Electric, supra, 551 at 557, when it stated: "...we do not think the
inventive element necessary to constitute subject matter is made sufficiently
evident." At page 555 of that decision it was pointed out that it must be
kept in mind that while it is important to encourage inventions because of
their possibly influence upon trade and manufacture, it is equally import-
ant that manufacturers 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.
The Board therefore recommends that the Final Action to refuse the claims
be affirmed, and that the application also be refused for failing to
disclose any patentable subject matter.
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 this application. The applicant has six months within which
to appeal this decision under the provision of Section 44 of the Patent
Act.
Decision accordingly,
A.M. Laidlaw,
Commissioner of Patents.
Dated at dull, Quebec
this 7th.day of
July, 1975.
Agent for Applicant
Fetherstonhaugh & Co.,
Box 2999, Station D,
Ottawa 4, Ont.