COMMISSIONER'S DECISION
OBVIOUSNESS: Tang and Slot Means for Securing Cranes to Flat beds.
The application relates to superstructure for large material handling
apparatus which is removeably mounted on a bed of a mobile crane and
securing means therefor. Certain claims were refused for failing to
define a patentable advance in the art.
Final Action: Affirmed
This decision deals with a request for review by the Commissioner of
Patents of the Examiner's Final Action dated September 10, 1975, on
application 144,173 (Class 212-39). The application was filed on
June 8, 1972, in the name of Ralph H. Short, and is entitled "System And
Method For Removable Installation Of Swing Circle For Large Crane."
The Patent Appeal Board conducted a Hearing on November 24, 1976, at
which Mr. R.D. McKenzie represented the applicant.
The application relates to superstructure for large material handling
apparatus which is removably mounted on a bed of a mobile crane. Tangs
(protruding lips) of the superstructure are placed through slots in the
flat bed of the apparatus. Wedges are then forced into the slots of the
tangs to secure them beneath the lower surface of the bed. Figures 2 and
3, shown below, are illustrative of the alleged invention.
(see formula II)
(see formula III)
In the Final Action the examiner refused claims 1, 7, 8 and 12 for failing
to define any invention over the following patents:
United States
2,965,245 Dec. 20, 1960 Zeilman
Canadian Patent
642,236 June 5, 1962 Bernath
Zeilman shows a demountable structure for large cranes. The superstructure
of the crane is mounted on a flat bed. The superstructure is secured to
the flat bed by the well known means of a bolt and nut-clamp arrangement.
Figures 2 and 3, shown below, are illustrative of that invention:
(see figure II)
(see figure III)
Bernath shows a fastening means for removably attaching two pieces of an
assembly together using a "tang like member" 20 with a slot 21. A wedge 19
is fitted into slot 21 beneath a bearing member 14. This arrangement is
clearly depicted in Figure 3, shown below, of that patent:
(see figure I)
In that action the examiner stated (in part):
It is pointed out that Zeilman at column 2, lines 19-26 dis-
cusses inner and outer races. Thus Zeilman does secure one of
these races to the turntable and the other to the superstructure.
Applicant does this but employs different securement means. In
view of Bernath this use of a different securement means is
held to ba but expected skill. The difference in size between
the table of Bernath and the crane environment of applicant is
held to be simply a mere matter of degree. There is nothing
inherent in the large size applicant is involved with that would
lead one to believe that the fastener arrangement of Bernath
would not work.
It is admitted that Bernath is concerned with a connection in a
piece of furniture. The question of crucial importance in this
Final Action is whether a skilled workman in the crane field
could reasonably be expected to be aware of connectors generally
and particularly those in the heavy equipment and heavy machinery
field with which he is associated. It is held that he should be
aware of this field generally and the state of the art in this
field is evidenced by Canadian Patent 313,869 August 4, 1931 show-
ing in Figure 3 a wedge and slot connector for securing automobiles
in freight cars, Canadian Patent 34,202 of 1890 showing a wedge
and slot connector for a bolster in a wagon, Canadian Patent
159,993 of 1914 showing a wedge and slot connector for a freight
car log retaining upright or bolster, and Canadian Patent 250,625
of June 9, 1925 showing a tongue and slot connector for an upright
in a freight car. All these are in the heavy load field and
should be of common knowledge to any workman dealing with heavy
equipment including cranes.
In response to the Final Action the applicant was concerned "as to the status
of the Canadian patents listed [see above] in the second paragraph of the
final action...." It is clear that they have been made of record to show
the state of the art and what the examiner has previously argued was
common knowledge that a skilled workman "could reasonably be expected to
be aware of connectors generally and particularly those in the heavy equip-
ment and heavy machinery field...." In his response the applicant also
stated (in part):
...
However, it is the applicant's position that these additional
patents referred to by the Examiner do not alter the issue in-
volved nor do they detract from the allowability of the
rejected claims. The primary reference is U.S. Patent 2,965,245
to Zeilman et al which shows a demountable structure for cranes
using nuts and bolts. This reference which is relevant was cited
in the corresponding U.S. application and overcome by the present
claims to issue to U.S. Patent 3,726,418 (a copy of which is
attached). However, the Examiner has combined the relevant
Zeilman et al reference m th Canadian Patent 642,236 to Bernath
(and perhaps the other patents referred to above) to hold the
rejected claims obvious. These patents other than Zeilman et al are in
fields of art entirely unrelated to cranes and it is with respect
that the applicant points out hat it does not claim to have
invented slot and wedge type clamps. These have been known for, per-
haps, thousands of years, but in recent times have been surpassed
by more sophisticated clamping arrangements which require more
complex tools to operate but which generally have been thought to
be more slitable for modern advanced equipment, particularly that
of gigantic proportions such as in the present application.
This point. is supported by the fact that other than Bernath,
(which relates to the long established furniture field) the most
recent of the new patents located by the Examiner showing slot and
wedge type clamps is dated 1931. At that time a load of a few
tons was probably considered a heavy load, while in the present
case the gross vehicle weight for a standard machine of the type
using the present invention is in the range of 395,000 pounds.
This machine is used with a boom assembly which could be as much
as 400 feed long. Further, the machine has a rated maximum load
carrying capacity of 300 tons. Two specifications relating to 300
ton cranes which utilize the present invention are attached for
information. The Examiner has stated that the difference in size
is "simply a mere matter of degree". It is respectfully submitted
that this is not the case. If one were to accept this type of
reasoning, one would expect that the load having been multiplied
approximately 100 times, it would be necessary to multiply the size of
the clamps by approximately 100 as well. The fact of the matter is that no
one has previously conceived that good old slot and wedge type clamps
could be used effectively for an application of this proportion.
The proof of this is in the fact that the problem of more simply
mounting a crane superstructure on a bed (referred to in the intro-
ductory portion of the disclosure) has existed for some time without
anyone else proposing this solution.
...
It is submitted that in return for developing and disclosing this
invention, the applicant is entitled to Canadian patent protection
for the complete scope of the invention made. The rejected claims are
not unreasonable in breadth in that they are restricted to specific
structure for mounting a crane super-structure to a bed. Accordingly,
the applicant respectfully requests the Commissioner to favourably
review and reverse the Examiner's action in refusing claims 1, 7, 8
and 12 of the present application.
The question to be considered is whether claims 1, 7, 8 and 12 are directed
to a patentable advance in the art. We will now consider the alleged inven-
tion as set out in the disclosure and claims. Claim 1 reads as follows:
A system for removably mounting a crane superstructure to a bed
comprising: an annular bearing having an inner race and an
outer race; means for securing one of said inner and outer races
to said superstructure, the other of said inner and outer races
having a plurality of depending tangs; said bed defining a
plurality of elongated slots adapted to receive said tangs, said
tangs projecting beneath said bed when said bed and bearing are
in assembled relation and each tang defining a slot extending
beneath said bed; and a wedge adapted to be forced into the slot
of each tang between the lower surface of an associated slot and
the lower surface of said bed when said bearing is assembled to
said bed.
At the Hearing Mr. McKenzie presented some interesting arguments which we
shall consider with care. He also presented a brochure high-lighting in
colour the alleged invention of the material handling apparatus.
The applicant "points out that it [he] does not claim to have invented slot
and wedge type clamps. These have been known for, perhaps, thousands
of years...." He goes on to say that "the critical question is whether it
was obvious to a skilled workman in the crane field to combine tang and
wedge assemblies with the known structure to arrive at the system claimed...."
Such consideration, of course, is not without its difficulties.
The applicant maintains that his claims are directed to a novel arrangement.
The specific issue, then, is whether that arrangement involves such an
exercise of the creative faculties of the human mind as to merit the
distinction of invention and a claim to monopoly. 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
a 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
(see Merco Nordstrom Valve Co. v. Comer (1942) Ex. C.R. 138 at 155), It
is also settled law that the matter of obviousness is to be fudged by
reference to the "state of the art" in the light of all that was previously
known to persols versed in the art (see Almanna Svenska Elektriska A/B
v.- Burntisland Shipbuilding Co. Ltd. (1952), 69 R.P.C. 63 at 69).
In order to determine whether or not an invention is present the prior
art will now be reviewed and its cumulative effect considered (see De Frees
and Betts Machine Co. v D.A. Ace. Ltd. 25 Fox Pat. C. 58 at 59).
On considering the "heavy load" with which the instant application is
concerned, the applicant stated that: "The fact of the matter is that no
one has previously conceived that good old slot and wedge type clamps could
be used effectively for an application of this proportion." It is clear
however, that the same basic assembly procedure was carried out by Zeilman.
He did of course use a well known clamp bolt-nut assembly in lieu of the
tang-and-wedge attaching system. In doing so he had to make sure the bolts
were of a size and number to take the necessary strain.
Further the applicant states that: "Demountable cranes have been known for
years.... Tang-and-wedge assemblies are also well known." The specific
question then is whether using the well known tang-and-wedge assemblies in
a different use situation is directed to a patentable advance in the art.
Of pertinence to this decision is the rationale of the court in Bergeon v
De Kermor Electric Heating Co. Ltd. (1927) Ex. C.R. at 188, where Audette J.
stated:
The adaptation of old contrivances or devices of a similar nature
to a new or similar purpose, especially to the same class of
article, performing an old well known function will not amount to
or constitute invention.
...
In the present case the improvement claimed consists in a combin-
ation which, considering the state of the prior art, discloses
no new function or discovery which could, to my mind, amount
to invention. There is no sufficient invention in merely
applying well known things, in a manner or to a purpose which
is analogous to the manner or to the purpose in or to which it
has been previously applied.
See also Pope Appliance Corp. v Spanish River Pulp and Paper Mills Ltd. (1927)
Ex. C.R. 28.
The applicant maintains that his system alleviates "the necessity of using
large tools (torque wrenches) which are hard to handle." This statement
appears to be academic when we consider page 3, line 1 ff., of this disclosure
which reads: "The wedges may be forced into place by a hydraulic jack or
simply by using a sledge hammer...."
At the Hearing the applicant stated that, "Bernath, on the other hand shows
tang-and-wedge connections used in the furniture field and, it is difficult
to transpose this to a 300 ton crane."
This transposition of course is not necessary, because the cited references
in the Final Action referred to tang-and-wedge means for securing vehicles,
freight car loads, etc. For example, Herron (Canadian patent 159993) relates
to a tang-and-wedge attaching means for securing large loads of lumber on
a flat-bed freight car. One object is "to facilitate the removal of such
stakes [part of the load securing means] ...." Figure 5, shown below, is
illustrative of that invention.
(see figure I)
Claim 1 "recites a system of removably mounting a crane superstructure to
a bed having a number of tang-and-wedge assemblies."
In view of the above considerations, we are not persuaded that the applicant
is entitled to the broad concept of securing heavy equipment to a base with
well known tang-and-wedge attaching means. Claim 1 merely covers a known
securing means in what may be termed a different use situation. We should
not grant a monopoly which could prevent artisans in this field from securing
two members together in a well known manner. In our view claim 1 fails to
meet the test of a novel combination involving a degree of ingenuity. Claim 1
should be refused. The rationale of the court in Bergeon v DeKermor, supra,
also applies.
Claims 7 and 8, which depend on claim 1, are directed to specific locations
of the tangs, This addition to claim 1 does not make a new and patentable
combination over refused claim 1. These claims should also be refused.
Claim 12 covers substantially the same scope of monopoly as is covered in
claim 1. The only difference is a reference to "a wedge securing means."
Means for securing a wedge in a tang-and-wedge assembly is known in the
art. See Figure 1, shown below, of the cited patent to Graham (34,202).
(see figure I)
The arguments for refusing claim 1 apply equally to claim 12.
Having found claims 1, 7, 8 and 12 unallowable over the references cited
by the examiner we should make a further comment. Even if we had found to
the contrary we would still have felt constrained to return the application
to the examiner to consider how Canadian Patent 74963- Klohn, January 3, 1967,
would effect the patentability of the claims in question. Because of the
conclusions we reached above, however, there is no need to do so, and we
merely put it on the record as of interest only. Figures 1 and 4, shown
below, are illustrative of the Klohn invention:
(see figure I) (see figure IV)
In summary, we are satisfied that claims 1, 7, 8 and 12 are not directed
to a patentable advance in the art over the references cited by the examiner.
There is, in our view, no result which could have flowed from an inventive
step. We recommend that the decision in the Final Action to refuse these
claims be affirmed.
An added comment is in order. We find it surprising that the examiner did
not refuse claims 2 and 3. In claim 2, for instance, the only distinction
from claim 1 is the fact that "each tang slot is tapered upwardly." Yet this
is usually common to any tang-and-wedge assembly, and is shown, for example,
in Figure 10 of the Mills (313,869) reference. Similarly the only new
feature in claim 3 is the "means for locking each of said wedges." Such
means are shown in the Graham patent mentioned above. We can hardly see
that these distinctions would render claims 2 and 3 patentable if claim 1
were unpatentable. We believe, too, that claim 3 is for all practical
purposes essentially the same as refused claim 12.
J.F. Hughes
Assistant Chairman
Patent Appeal Board
Having considered the prosecution of this application and the recommendations
of the Patent Appeal Board, it is my decision that claims 1, 7, 8 and 12 be
refused. The allowability of claims 2 and 3 should also be reconsidered.
If any appeal is contemplated under Section 44 of the Patent Act, it must
be commenced within six months of the date of this decision.
J.H.A. Gari‚py
Commissioner of Patents
Dated at Hull, Quebec
this 15th day of December, 1976
Agent for Applicants
George H. Riches and Associates
Suite 812-820
67 Yonge Street
Toronto Ontario
M5E 1K1