COMMISSIONER'S DECISION
OBVIOUSNESS: Underground Irrigation System
An underground pipe having discharge outlets along its length is supplied
with water under pressure for the irrigation cycle and air pressure for
the purge cycle.
Final Action: Modified.
This decision deals with a request for review by th a Commissioner of
Patents of the Examiner's Final Action dated February 20, 1975, on
application 140,475 (Class 299-4). The application was filed on
April 25, 1972, in the name of Robert Geffroy, and the invention is for
"Equipment For The Irrigation, Treatment And Feeding Of Soils And Plants
By Underground Diffusion Of Fluids." The Patent Appeal roard conducted
a Hearing on February 25, 1976, at which Mr. P. Herbert represented
the applicant. At the hearing the applicant indicated that he would
submit further evidence at a later date. On May 31, 1976 we received
a model of the invention, as well as an affidavit from the inventor.
This application relates to an underground irrigation system which provides
seepage of water beneath the surface of the ground. A pipe buried under
the soil surface supplies water under pressure to discharge out~~~ located
along the length of pipe. These outlets are attached to the pipe by
coupling nipples which allow the fluid to diffuse into the groud. Figure I
below illustrutes the invention.
(see formula I)
Claim 1 of the application reads as follows:
Underground equipment for the underground irrigation, treat-
ment and feeding of soils and plants by underground diffusion
of fluids, on ground which may have different levels, having
at least one cock controlling an underground piping system for
underground distribution of fluids in the vicinity of the roots
of the plants and being intermittently operational for about
2 to 10% of the time, said fluid being free from any suspended
elements, comprising a plurality of underground fluid diffusion
points located along the piping system each having controlling
and regulating means, extraction means, and underground porous
means providing underground access for the fluid into the ground,
said controlling and regulating means determining the flow mate
at each point, said porous means prevents the re-entry of
contaminants into said system.
In the Final Action the examiner refused the application as failing to
disclose any patentable subject matter over the following references:
United States
3, 518, 831 July 7, 1970 Tibbals
3,046,747 July 31, 1962 Timpe
The Timpe patent describes an underground irrigation system comprising
an underground pipe having a plurality of discharge cartridges along the
pipe. These cartridges have a semi-rigid foam plastic area which allows
the water to seep through and be discharged into the surrounding soil.
Figures 1 and 2 of Timpe are shown below.
(see formula I)
(see formula II)
The Tibbals reference shows a subterranean irrigation system in which a
fluid supply conduit terminates in a header located below ground level.
This header has a number of fluid distributing conduits connected to it
and each conduit has a number of spaced fluid dispensing units along its
length. Figures 1 and 2 below are illustrative of this reference.
(See Figure I)
Claim 10 of Tibbals reads as follows:
An irrigation system for subterranean installation comprising
an irrigating fluid header, a plurality of fluid dispensing units
for conveying irrigating fluid from said header thereto, at least
one of said fluid dispensing units having valve means incorporating
a moveable member positionally responsive to the pressure of the
irrigating fluid in said conduit means for controlling the rate
of fluid transfer from said conduit means into the surrounding soil.
In the Final Action the examiner stated (in part):
Claims 6, 7, 8, 11, 12, 13, 15 and 17 stand rejected for
failing to define a patentable advance from the above cited
references. Said claims merely add various elements to the
rejected claims such as a coupling, a clapper valve, a source
of pressurized gas for purging the system (the cited Tibbals
et al patent discloses a source of pressures liquid for
purging) and a pressure regulation. Such elements are commonly
known in fluid systems and an artisan is but expected to utilize
such elements when desirable or required. The addition of such
elements does therefore not require any inventive ingenuity.
Claims 1 and 6 stand further rejected for not being supported
by the disclosure. The disclosure does not describe the
system as "being intermittently operational for about ~ to
10% of the time" nor that "the orifice internal wall surface
includes a water repellant silicone".
The present porous outlet is not considered patentably
different from the porous outlets disclosed by the references.
Timpe disclosed that the porous material 33 precludes fereign
material, such as roots and particles of soil from entering
(column 3 lines 60-63). Tibbals et al utilizes the same
material which will protect against "any entry of impurities
coming from the ground and against the penetration of ro~~s".
The present porous material does therefore not have any
disclosed properties which are different from the properties
of the porous material disclosed by the references. In ~~ct
on page 6 of the present disclosure it is stated that "the
porous tube 348 can be made of any rot-proof porous material
having a sufficient level of filtration and which does net
allow roots to pass through". The foregoing specifications
certainly apply to the porous material of the references and
the presently disclosed porous material is therefore not
patentably different from the reference materials.
...
The cited reference related to underground equipment for
irrigation, treatment and feeding of soil and plants and the
present disclosure does not disclose intermittent operation
for 2 to 10% of the time. Furthermore the Tibbals et al
patent disclose a dispensing of liquids "at selection uniform
and controlled rates over extended periods of time in accordance
with the needs of the soil being irrigated in conjunction
with means for controlling the rate of liquid emission therefrom".
It is clear from the foregoing quotation that Tibballs et al
does have fluid flow control mechanisms as well as time centrol
mechanism.
The present porous element cannot be considered different from
the porous elements of the above cited patents. As stated
above the present disclosure states that the porous tube 348
(the porous material) "can be made of any rot-proof porous
materials having a sufficient level of filtration and which
does not allow parts to pass through". Such material has
exactly the same properties as the porous material disclosed
by the cited references; which allow the passage of liquid
but prevent the penetration of roots, The present disclosure
does not describe any particular porous material which would
constitute an improvement over the material used in the
reference devices.
In his response dated May 20, 1975 to the Final Action the applicant
stated (in part):
In claim 1 of the present invention, the underground
porous means "prevents the re-entry of contaminants into said
system". This essential feature is NOT disclosed in Tibbals
et al. The attention of the Commissioner is directed to column 4,
lines 60 to 75 of Tibbals et al, and the beginning of column 5
wherein the "semi-rigid porous disc" must be "of sufficient
porosity to permit the passage of small silt and clay particles
therethrough under such increased flow rates"'. It is submitted
that this "semi-rigid porous means" which permits the passage of a large
flow and volume of liquids and sediment will also allow a
similar return flow into the system. Thus, the device of Tibbals
et al will allow sediment to re-enter the system. The device of
the present application will NOT alloy any re-entry of contaminants
into the system.
...
Tibbals et al does not anticipate the purging system of the
present device, Tibbals et al uses a violent flow of liquid
which is several times the normal flow of the the liquid in the
system, to evacuate the accumulating sediment. this system is
of a different structure, a different mode of operation and is
based on an entirely different philosophy than that of the present
device.
The device of the present application utilizes a gas-blow
device. Instead of removing the ~~~~ ~~ ~~~~tly, it re~~~
the water which is contained in the p~~~~ and distributor ~~~~~~
after each injection. This p~~~ents the device from being emp~led
by gravity, that is, by water flowing to the low points in the
system and by the air suching through the soil at the high points.
The method of evacuation taught in the present application
prevents the external clogging of the outlet p~~s. One can
clearly see that the purging system of Tibbals et al is based
on different principles that the system of the present application
and that the former does not disclose the latter process.
...
Claim 1 of the present application further requires a controlling
and a regulating means at each fluid division point. In
contradistinction, reference is made to Figures 2 and 3 of
Timpe which discloses "a foam plastic insert 33" as a diffusion
point which produces a drop-by-drop flow of water. Water ~~~ps
through this insert through the myriad of tiny interconnected
cells to disperse into the ground.
It is submitted that it is impossible to obtain any regulation
and control of the water flow when utilizing the device of Timpe,
and it is especially impossible to control the flow in a pre-
determined ratio. The myriad of microscopic cells used in Timpe
provides drop-by-drop seepage with no real flow control. Further,
the small apertures hold the smallest impurities in suspension
in the eater or in the soil in the event of an inversion. They
therefore may became clogged very easily.
The positive control system of Sealfire is not anticipated by
the use of a myriad of microscopic cells of Timpe. It is seen
that the use of a single orifice as a stable and reliable control
is not the same as a system of small cells allowing a drop-by-drop
seepage therethrough.
...
The porous elements of Tibbals et al as referred to by the Examiner
will allow sediment to pass through. The requirements of the porous
element of the Sealfire device dictate that sediment does not pass
through the adequate level of filtration. The porous element of
Timpe only allows water to seep through while the elements of
Sealfire allow water to pass through freely and are controlled by
orifices 239, 439, 739 or 207d.
Tibbals et al has arranged its distribution of the water to allow
sediment therethrough. The prefiltration occurs for large particles
only and it does not provide an essential part of Sealfire's device
which prevents re-entry of contaminants into the system.
This essential feature of the porous means of Sealfire has been
clearly set forth in the claims and is not present in Tibbals
et al. If water, from which only the larger particles have been
removed, were passed through the porous elements of Sealfire, the
device would be clogged after a few hours of operation. The
Sealfire device overcomes this problem and drawback of Tibbals et al
by providing an improved porous means as set forth in claim ~.
The claims were rejected on the ground that they were "substantially antici-
paced" by the cited references. Prior to the hearing the agent was informed
that the reason for rejection was in effect obviousness, and he agreed to
argue his case on that ground.
The question to be decided is whether the applicant has made a patentable
advance in the art.
At the hearing the applicant emphasized that flow in his system is controlled
by "extraction means", "connection means" and "porous diffusion means".
Looking at the "extraction means" as defined by the applicant, we find that
this relates to the size of opening in the supply conduit where the nipple
is inserted. Both Tibbals and Timpe disclose an opening in the "T" connect-
ion which is smaller than the supply conduit, and is in effect an "extraction
means" in the same manner as used by the applicant.
Considering the applicant's "connection means," we find that it is merely
a length of tube which connects the "extractor means" to the diffuser head.
Use of a tube to control fluid flow between the conduit opening and the
diffuser head by the applicant is no different than the flow control notches
(Figure 4, #64) of Tibbals, which is also located between the conduit
opening and diffuser head.
Use of a porous diffusion means is shown in both Tempe and Tibbals. The
applicant states on page 6 of the disclosure that "porous tube 348 can be
made of any rotproof porous material having a sufficient level of filtration,
and which does not allow roots to pass through, for example of filtration
ceramics or sintered stainless metals." Timpe states in column 3 line 57
that "the porous nature of plastic 33 enables this previously described
desired seepage of fluid therethrough and yet the plastic 33 is firm and
somewhat semirigid and of such consistency as to preclude foreign material,
such as roots and particles of soil from entering and clogging up the plastic.
The term "semi-rigid" is intended to mean that the plastic foam materials
are made from the same polymers as rigid foams but are usually lower in
density...."
We consequently conclude that the manner in which the fluid is transmitted
from the supply source to the soil, regardless of whether it is termed
"flow" or "seepage" is similar in the applicant's arrangement to that shown
in both Tempe and Tibbals.
The applicant argues that his arrangement permits regulation and control,
something which is not found in the citations. We note that Tibbals was
also concerned with the maintenance of uniform flow, and discloses the use
of a spring loaded valve at each outlet head or diaphragm metering arrange-
ment. These are intended to give uniform flow regulation over a large area.
It is also the applicant's contention that since the prior art uses available
water, which requires prefiltering, that there is a possibility of those
systems becoming clogged after a few hours operation. On the other hand
since he uses fluid "free from suspended elements," his own device will not
clog. Tibbals states the "porous disc 56 ... is constituted of sufficient
porosity as to readily permit the passage of multiples of normal flow rate of
hater therethrough as well as to permit the ready passage of small silt
clay particles therethrough under such increased flow rates." Any user of
Tibbals system would pre=filter the water to ensure the removal of particle
~ that would not move through the diffuser head under pressure. Similarly
in the prior art devices used fluid "~ from suspended particles," then
there would be no problem with internal clogging. It must be remembered that
the diffusing head of the prior art arrangements do not allow root hairs or
particles of soil to enter and clog up the plastic.
We do agree with the applicant that his purging system using a gas-flow device
provides an advantage over the fluid purge arrangement of Tibbals. This
is particularly true in an area where different elevations are encountered
and the applicant's purging system overcomes the problem of "inversion."
On1 considering the difference between claim 1 and the prior art we find
that Tibbals discloses the basic elements of the claim as well as their
relationship to each other. The examiner questioned whether there was any
support for the statement that the system was "intermittently operational
for about 2 to 10% of the time." In our view the operational time of any
system will be governed by many factors, such as soil conditions, type of
plants, weather etc, all of which require adjustment by the user. Therefore
the intermittent operation proposed by the applicant does not add any
patentable feature, and claim 1 is not patentable over the prior art.
Similarly the features added in dependent claims 2 to 11 and 14 to 17 are
not patentably significant in the light of the Tibbals reference. There is
no doubt that these claims show some modification to the prior art, but
we do not believe such modifications display the necessary exercise of the
creative faculties of the human mind such as to merit the distinction of
invention. In Niagara Wire Weaving Co. v Johnson Wire Works. Ltd. (1939)
Ex. C.R. at 273 Maclean J. stated: "Small variations from or slight modifications
of, the current standards of construction, in an old art, rarely are indicative
of invention; they are obvious improvements resulting from experiences, and
the changing requirements of users," The modifications in question are too
insignificant to rise to the lever of invention.
However claims 12 and 13 which specify using pressurized gas in the piping
system do relate to a useful subject matter which does define a patentable
advance in the art. By using pressurized gas for purging the system the
applicant overcomes the problem of "inversion" which may occur when using
pressurized liquid as is done by the prior art. In our view these claims
are allowable if they are drafted in independent form (present claim 12 depends
on claim 1).
we recommend that claims 1 to 11 and 14 to 17 be refused. We also recommend
that claims 12 and l3 be accepted if amended as indicated above.
G. A. Asher
Chairman
Patent Appeal Board
I have reviewed the recommendations of the Patent Appeal Board, and
concur in them. The applicant has six months from the date of this
decision to take an appeal under Section 14 of the Act, or to amend
as suggested by the Board.
J.A. Brown
Acting Commissioner of Patents
Dated at Hull, Quebec
this 7th day of July, 1976
Agent for Applicant:
Georges H. Riches & Associates
Suite 812-820
67 Yonge Street
Toronto 1, (Ontario)