COMMISSIONER'S DECISION
OBVIOUSNESS: Pipe Coupling Arrangement
A sealed joint is obtained by using sealing and abrasive rings in a plastic
pipe bell into which a spigot is inserted. External clamping means are
used to withstand high axial separation forces. The claims were rejected,
hut it was held the application should not have been refused. Amendments
were suggested.
Final Action: Modified.
This decision deals with a request for review by the Commissioner of
Patents of the Examiner's Final Action dated April 30, 1975, on application
150,074 (Class 285-52). The application was filed on August 23, 1972,
in the name of Amsey Buckler et al, and is entitled "Mechanically Locked.
Bell And Spigot Coupling For Ducts." The Patent Appeal Board conducted
a Hearing on May 19, 1976, at which Mr. K.M. Garrett represented the
applicant.
This application relates to a pipe coupling arrangement wherein a sleeve
ring of double-sided emery cloth assists in retaining the two pipe members
in position. Figures 1 and 2 reproduced below illustrate the invention.
(see formula I)
(see formula II)
Claim 1 of the application reads as follows:
A bell coupling construction for a plastic duct comprising, a
bell housing section of greater cross-sectional area than said
duct and connected thereto by a neck portion; at least one open-
ended axially aligned slot formed in the wall of said bell housing,
said slot extending from the open end of said bell housing to a
location adjacent said neck portion, and substantially annular
retaining means located around the inner surface of the bell
housing section intermediate the cuts of said slot, said retaining
means being characterized by a substantially abrasive, inwardly
directed surface adapted to engage with an inserted spigot section
of a second duct member.
In the Final Action the examiner refused the application for lack of patent-
able subject matter in view of the following references:
United States
3,252,192 May 24, 1966 Smith
2,702,716 Feb. 22, 1955 Basolo et al
The Basolo reference relates to joints for fluid conductors using a coupling
tubing body having longitudinal slits on which encompassing clamps firmly
engage the attaching ends, Figure 1 shown below represents the Basolo joint.
(see formula I)
The Smith reference relates to a clamping device for holding adjacent ends
of pipes in a fixed position relative to each other. Figure 1 of this patent
shown below is representative of the arrangement used.
(see formula II)
Claim 1 of the patent reads:
A clamp for gripping a tubular article having a cylindrical
surface comprising a pair of opposed and similar members each
formed with a semi-cylindrical gripping surface, a pressure
flowable adhesive coating on each gripping surface, a layer
of relatively closely packed generally sherical ductile
particles secured to said members by said adhesive, said layer of
particles having a substantially uniform thickness of less
than about twice the diameter of said particles and more than
the diameter of any single particle, a majority of said particles
being within a size range of about twenty-five thousandths and
about fifty thousandths of an inch in diameter, the radius of
curvature of said gripping surfaces being substantially equal
to the radius of curvature of said cylindrical surface plus the
thickness of said layer, and tightening means associated with
said members to press said gripping surfaces tightly against
an encircled cylindrical surface, said adhesive coating permitting
relative movement between said particles to insure substantially
uniform gripping of said cylindrical surface.
In the Final Action the examiner stated (in part):
The application is directed to the concept of providing an
annular abrasive means between two mating annular surfaces of a
bell and spigot-type of joint. Specifically, the application
describes a bell and spigot-type of pipe joint comprising an in-
tegral clamping means formed on the extreme end of the bell
portion of one of the pipes; the abrasive means being situated
betvreen the inner cylindrical surface of that portion of the bell
formed into a clamping means and the spigot.
The applied patent to Smith teaches the concept of providing an
annular abrasive means between the inner cylindrical surface of
a clamp and the mating surface of a pipe.
The examiner maintains that it~would be obvious and mere expected
skill of ono working in the art to apply the teachings of the
Smith patent to any pipe clamping arrangement.
Since the applicant shows the abrasive means situated in that
portion of the bell which forms a clamp, it is considered that
it would be obvious to a man skilled in the art to apply the
teachings of the Smith patent to this particular. clamping arrangement.
In his letter of February 3, 1975 applicant argues
"The examiner has alleged that "it would be obvious to
a man skilled in the art to apply the teachings of Smith
to this particular clamping arrangement". By this it is
assumed that the examiner is referring to a bell and
spigot coupling arrangement which can be readily conceded
to be known in the art. However, the bell and spigot
arrangement is not one which normally leads to any type of
clamping, as both the bell and the spigot mating walls are
normally parallel and loose fitting".
The examiner would like to draw the applicant's attention to
United States Patent 2,702,716 made of record in applicant's
letter of August 27, 1974, which reference clearly teaches
that a bell and spigot arrangement provided with integral clamp-
ing me as is known in the art. Thus applicant's only alleged
inventive step in the art is to provide a known annular
abrasive means to a known clamping arrangement.
Examiner has clearly Shown that applicant fails to describe
and claim a patentable advance in the art in view of the teach-
ings of the cited patent to Smith.
The applicant in his response dated July 24, 1975, to the Final Action
stated (in part):
It is not clear to applicant how the pipe clamping; arrangement of
Smith can be applied to any pipe clamping arrangement, as alleged
by the examiner, and for purposes of argument it will be assumed
that it was intended to state that it is obvious to apply the
teaching of the patentee to any pipe coupling arrangement. Such
allegation may be readily conceded, and indeed it was contemplated
by the patentee.
The Smith arrangement shows a multiplicity of parts comprising
ring assemblies 13 and 14 (numbered with reference to the
patent) each ring assembly including two opposed clamp members
16 and 17 which are also identical, and held tagether by clamping
bolts 22. Clamp members 16 and l7 have a pipe contacting
surface 18 to which a layer of lump-like particles 31 are adhered.
steel shot is described as being very sultable, although relatively
hard and relatively small particles are more generally taught in
the specification. Ring assemblies 13 and 14 clamp externally to
adjacent pipes 10 and 11 upon each side of a joint therebetween
formed by sealing pipe coupling 12 or other means as may be
generally known in the art. The clamped ring assemblies are held
together by a plurality of tie bolts 26.
The examiner states that "Since the applicant shows the abrasive
means situated in that portion of the bell which forms the clamp, it
is considered that it would be obvious to a man skilled in the art
to apply tire teachings of the Smith patent to this particular
clamping arrangement". It is quite apparent that the examiner is
working backwards from applicant's teaching on an attempt to show
that the invention is obvious. Such rejection is manifestly unfair.
As stated by Lloyd-Jacob J. in Benmax v Austin, 70 RPC 143 at 154,
"the approach (to the question of obviousness) must proceed in the
other direction."
...
The examiner implies that it is obvious to modify the structure as
taught by Basolo et al in the light of the Smith teachinlg. Again it
is believed that the examiner is proceeding incorrectly by making
an ex post facto analysis of applicant's invention and working
backwards from it. As stated by Jenkins L.J, in ASFA v Burntisland
69 RPC 63 at 69 (1952) "The mather of of obviousness is to be judged
by reference to the state of the art in the light of all that was
previously known by persons versed in the art, derived from ex-
perience of what was practically employed as well as from the contents
of privious writings, specifications, textbooks and other documents".
(emphasis added) . The art in question cannot be precisely defined;
it concerns pipe ducting such as may be employed by public or
private utility companies for carrying electric power or signal trans-
mission cables. Traditionally-such ducts have been manufactured
from materials such as cement-asbestos and pitch-fibre. More recently
ducts have been manufactured from plastic materials such as moulded
polyvinyl chloride or filament reinforced resins. A person skilled
in the art should be taken to have cognizance of such types of duct;
since the invention is restricted to plastic ducts the person should
be versed in the properties of plastic materials. It is not
believed that such person should be required to have knowledge of
practise in the aircraft industry in coupling small bore, well fitting
metal tubes. In fact it is teen recognized by those having a knowledge
of plastic materials that practises that may be common-place in
engineering applications involving metals may be quite in-applicable
to similar applications involving plastic materials due to the cold
flow and creep that the latter materials undergo.
The question to be determined is whether the applicant has made a patentable
advance in the art.
Considering first the Smith citation, we agree with the examiner that this
patent shows the concept of using a pipe clamping arrangement for holding
adjacent ends of pipes in a fixed position relative to each other. Smith uses
a split ring assembly installed on each pipe and these assemblies are anchored
to each other by a series or tie bolts. The inner surface of the split ring
assembly is provided with small particles to help hold the clamped pipe in
position. The applicant uses an enlarged bell portion at one cud and inserts
the "spigot" end of the length to be coupled thereto. He uses an annular abrasive
means located on the inner surface of the bell portion and places an exterior
clamp thereon to carry the axial load.
At the Hearing, the applicant emphasized that his arrangement provides a
joint which possesses all necessary axial strength, and as well is easy to
install. We see no reasons why we should disagree with the applicant's sab-
mission that several important and unobvious advantages flow from his
arrangement which utilizes a bell and spigot joint and as abrasive to
ensure tight contact.
The applican: objected to the Basolo reference on the ground that it was
first raised only in the Final Action. Basolo was cited to show that the
use of a bell and spigot joint arrangement for ducting is known. On page 2
of the Final Action the report states that "The Examiner would like to draw
the applicant's attention to U.S. Patent 2,702,716 made of record in applicant's
letter of August 27, 1974, which reference clearly teaches that a bell
and spigot arrangement provided with integral clamping means is known in the
art." We note that Basolo relates to joints for tubing "such as used in
aircraft, and the like." His concern is a scaling arrangement using an
enclosed "o" ring to ensure no leakage of fluid. Due to the relatively low
pressure used he had no concern with axial load.
At the Hearing the applicant emphasized that an important feature of his in-
vention is the use of an abrasive material for engaging the conduit. By
contrast Smith uses a ductile material. the object in using a roughened
surface is to increase the coefficient of friction between the holding
surfaces, and thereby assist in maintaining the axial strength of the joint.
In our view the composition selected for the roughened area portion would be
governed by the material used in the conduit, and consequently we find no basis
for patentability on these grounds.
There appears to be no doubt but that the applicant developed a novel combina-
tion. The specific question we must decide is whether that development
involved such an exercise of the creative faculties of the human mind as to
amount to invention worthy of patent protection. It has been authoritatively
stated that the art of combining two or more parts into a new combination
whether they be new or old, or partly new and partly old, so as to obtain
as new result, or a known result in a better, cheaper, or more expeditious
manner, is valid subject matter if there is sufficient evidence of thought,
design, ingenuity in the invention, and novelty in the combination.
In a recent and as yet. unpublished decision, Omark Industries v Sabre Saw
Chain, April 14, 1976, for example, the Federal Court of Canada, in holding
an improved saw chain to be patentable said, at p. 18:
The subject invention is simple, but is an improvement
which eliminated "hooking" and substantially reduced "kick-
back" in the operation of a saw chain; and has enjoyed
substantial commercial success. Neither the Cox nor the
Merz patents show a safety or guard link (and this is
admitted by the defendant) and do not constitute anticipation.
On the evidence, the subject matter of the subject patent
is an advance in the art and therefore an inventive step.
It is also settled law that the matter of obviousness is to be judged by
reference to the "state of the art" in the light of all that was previously
known to persons versed in the art (See Almanna Svenska Elektriska A/B v.
Burntisland Shipbuilding Co. Ltd. (1952), 69 R.P.C. 63 at 69).
In the Final Action the examiner states that "it would be obvious and mere
expected skill of one working in the art to apply the teachings of the
Smith patent to any pipe clamping arrangement." Smith however uses
two pairs of split rings, aided by a roughened surface, to clamp the
duct together. This requires tie bolts to hold the assembly together.
Consequently he must use a large number of parts which require considerable
time to assemble during pipe installation. On the other hand the applicant's
arrangement of a duct bell with a single abrasive surface area to
accommodate the joining duct end is much simpler, and can be assembled
quickly. In our view this simplification constitutes an exercise of the
inventive faculty sufficient to warrant the grant of a patent.
Another component of his invention is seal 20, important in excluding
moisture and in providing a tight fit. When all these features are put
together we have a coupling easy to assemble, which possesses sufficient
strength to resist high axial separation forces, which can be used under
water, and which because of its ruggedness has enjoyed undoubted commercial
success for use in hostile environments. We are consequently of the
opinion that if properly claimed it meets the test of a patentable improvement
specified in the Omark Industrics decision (supra). For that reason we recommend
withdrawal of the refection of the application as a whole.
When we turn to the claims, however, we find that neither independent
claims 1 or 5 include all the essential features of the invention. Mr. Garrett
emphasized the importance of both the "means whreby the coupled duct may
withstand high axial separation forces by the mechanical clamping means,"
and the seal between the ducts. To be allowable all independent claims must
include these features, and in our view only the dependent claim 8 includes
all the necessary features. We consequently agree with the examiner's
rejection of claims 1-7 inclusive.
The Board recommends that the decision of the examiner to refuse the
application be withdrawn, and that the refusal of claims 1 to 7 be sustained.
If the applicant amends the claims as suggested above, the application
should be allowed to proceed.
G. Asher
Chairman
Patent Appeal Board
I concur with the findings of the Patent Appeal Board. The rejection of
the application is withdrawn. The applicant must make the amendments required
by the Board within six months of the date of this decision, or take any
appeal under Section 44 of the Patent Act.
J.H.A. Gari‚py
Commissioner of Patents
Dated at Hull, Quebec
this 28th day of June, 1976