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                COMMISSIONER'S DECISION

 

OBVIOUSNESS: Aerosol Dispensing Container

 

The application relates to an aerosol container for spraying antiperspirants

and other substances free of liquified propellant. It was refused for

failing to define a patentable advance in the art. The Board was not

persuaded that the invention claimed is taught by or is obvious from the

cited art.

 

Final Rejection: Reversed

 

This decision deals with a request for review by the Commissioner of

Patents of the Examiner's Final Action dated August 28, 1975, on appli-

cation 140,066 (Class 222-53). The application was filed on April 18,

1972, and is entitled "Aerosol Dispensing Device." The Patent Appeal

Board conducted a Hearing on November 10, 1976, at which Messrs. D.N.

Deeth and P.K. Holland represented the applicant. Also in attendance was

Dr. R.S. Tonge, a representative of Unilever Limited.

 

The application relates to an aerosol container for spraying antiperspirants

and other substances free of liquefied propellant. The presence of liquid

propellant in sprayed materials causes chilling and other undesirable eff-

ects for the user. The device comprises a main compartment provided with a

dispensing valve, and which contains the substance together with sufficient

pressurised propellant vapour to effect dispensation. At the bottom of

the container is a reservoir containing both liquefied propellant and

pressurised propellant vapour. A communicating valve is located between

the reservoir compartment and the main compartment. Figure 2 of the application

illustrates the device claimed.

 

                           (See formula 1)

 

In the Final Action the examiner refused the application for failing to de-

fine patentable subject matter over the following patents, common knowledge

and expected skill.

 

British           875,384              Aug. 16, 1961          Clark et al

 

United States    3,258,163             June 28, 1966            Brush

 

Clark discloses dispensing devices, and in particular devices for dispensing

flowable materials by the pressure of the vapour of a liquid propellant which

has a low boiling point. It is an object of the Clark invention "to provide

a novel and improved device for dispensing flowable materials by vapour

pressure in which contact between liquid propellant and flowable material is

reduced." Figure 1 of the patent illustrates his invention.

 

                      (See formula 1)

 

Brush discloses a dispensing container of the gas propelled type which operate

at low pressures. The drawing, below, illustrates the invention and shows a

pressure reducing valve 24 between a propellant charge 14 and a product con-

tainer 12.

 

                     (See formula 2)

 

In the Final Action the examiner stated (in part):

 

   The British Patent and this application are quite similar in

purpose. However the British Patent does not provide a mechan-

ical pressure reducing valve. Orifices 9 and 10 do act to prevent

a liquid flow and because of their capillary nature do effect

some pressure reduction but nothing of any great value. However

to provide a pressure reducing valve between a high pressure pro-

pellant container and a lower pressure product container is held

obvious in view of Brush who does just that. To provide a dome

shaped top to the propellant container is held to be a mere matter

of choice and elementary design. To provide a fill valve at 19

is also held to be a mere matter of choice and elementary design.

 

   Note element 62 of Brush in this regard.

 

...

 

   It is here held that the alterations applicant has made to the

device of British Patent 875,384 are obvious in view of Brush and

common knowledge. In this respect applicants' attention is drawn 

to British Patent 399,650 of October 12, 1933 which establishes

that a one way rubber sleeve valve as shown in Fig. 2 of the

instant application is common knowledge.

 

   To employ it as applicant has done is but expected skill. Applicant's

attention is also drawn to British Patent 875,384, page 1 lines 53-

57 wherein is stated that "The aperture and the outlet aperture  

may be in the form of valves but are preferably small seized

orifices" (emphasis added) Thus patentee envisaged valves

generally but chose a pin type.

 

In response to the Final Action the applicant argued that the application

is not open to objection on the ground stated by the examiner. He says that the

Clark invention possesses disadvantages that rule it out of consideration

for commercial use, and that the valve in Brush operates in an entirely

different manner from that in the present application. He also stated (in

part):

 

   The British Patent also fails to disclose the use of a communicating

valve, which, as required by the claims in the present application

is constructed so that it is held closed except when opened by

a predetermined level of pressure difference between the product

compartment and the propellant reservoir to permit propellant

in the vapour phase to pass from the propellant reservoir to

the product compartment. It must be emphasized that the only means

shown in the British Patent 875,384 for limiting the mixing of

propellant product when in use is the provision of capillary openings 9

and 10. Note that mixing is limited and not prevented, as will be

appreciated from a careful study of the specification. Applicants

agree with the Examiner when he states that the capillary openings

9 and 10 permit gas to flow into the container 1 to effect product

discharge, but they cannot agree that these self same capillary

openings will act to prevent liquid flow. Certainly, liquefied

gas propellant cannot flow out of the tube 6 via tube 8 even if

the device is inverted, but what the Examiner has not appreciated

is that liquid product is not necessarily prevented from entering

the capillary opening 9, especially when the container is shaken

or inverted. There is clearly no mechanism whereby the propellant

pressure in the tube 6 can be maintained at a value in excess of

that within the headspace of the can: in fact the pressure inside

and outside tube 6 will normally be the same. Hence, at the moment

when product is dispensed, pressure within the headspace will drop,

liquefied propellant in tube 6 will boil-off causing more propellant

gas to enter the headspace. The consequence of this will be that

the temperature of the liquefied propellant will fall due to loss of

latent heat of evaporation, gas pressure within tube 6 will diminish

due to the temporary temperature reduction and product might at

this point be drawn into the propellant reservoir tube, especially

if the device is inverted.

 

...

 

Brush is clearly concerned with low pressure systems: a dispensing

pressure of 3-10 lbs per square inch is referred to at column 1,

line 23 and Brush makes particular reference to the use of a pressure

of 3 psi at column 4, line 9. This very low pressure clearly has a

profound effect on the nature of the product which is to be dispensed,

and also on the sensitivity of the valve inside the Brush device.

Brush states at column 4, line 23 that

 

"The container may be used to dispense air sensitive

liquids with a gentle controlled flow, and without

atomisation or foaming or spray effect associated

with the usual aerosol container." (emphasis added).

 

It can be concluded from this that the Brush device would be quite

ineffective for dispensing an atomised spray which it is noted is

a most important attribute of Applicants device.

 

In this connection, claim 1 of the present application requires

the presence of a liquefied gas propellant, while Brush discloses

only a compressed gas. Claim 2 requires that the second compart-

ment be adapted to contain a liquefied gas, and it is not clear

that the compartment 14 is adapted to withstand liquefied gas

pressure.

 

The question to be considered is whether or not the applicant has made a

patentable advance in the art. Claim 1 which is before us reads as

follows:

 

An aerosol dispensing device having a top outer wall, a bottom outer

wall, a substantially cylindrical side outer wall, and a bell-shaped

interior wall, consisting essentially of:

 

i) a first compartment within the device having as one of

its boundaries the bell-shaped interior wall, the first

compartment containing a substance to be dispensed and

a liquefiable gas propellant in vapour phase, the substance

when a liquid comprising also dissolved propellant gas

 

           at the saturation concentration appropriate for the liquid

           substance and the propellant gas;

 

           ii) a dispensing valve extending through an outer wall inter

           connecting the first compartment and the atmosphere;

 

           iii) a second compartment within the device having as one of its

           boundaries the bell-shaped interior wall, and having an

           inlet through an exterior wall for introduction of a liquefied

           gas propellant, the second compartment containing liquefied

           gas propellant in liquid and vapour phase; the vapour pressure

           in the second compartment being higher than the vapour

           pressure in the first compartment; and

 

iv) a communicating valve extending through the interior wall inter-

           connecting the first and second compartments, the communicating

           valve permitting the passage of vapour phase propellant from the

           second to the first compartment while preventing passage of liquid

           phase propellant from the second to the first compartment; the

           communicating valve comprising an open ended tube extending from

           the interior bell-shaped wall part way into the second compartment

           in such a manner that its open end remote from the interior bell-

           shaped wall is always above the level of the liquefied gas

            propellant whatever the position of the device; and the communicating

           valve having a resilient member which holds the communicating valve

           closed except when the gas pressure difference between the first

           and the second compartments rises to a predetermined level

           following dispensation of substance from the first compartment.

 

           At the Hearing Mr. Deeth raised some interesting arguments which require

           careful consideration. Dr. Tonge demonstrated the use of different dis-

           pensers, and also assisted the Board with some relevant observations.

 

           In order to determine whether or not an invention is present, it is necessary

           to review the prior art and consider its cumulative effect (see DeFrees and

           Betts Machine Co. D.A. Acc. Ltd.25 Fox Pat. C. 58 at 59).

 

           The applicant is seeking with an improved device to avoid the disadvantage

           of liquefied gas propellant being dispersed with the product, a disadvan-

           tage common to the usual aerosol dispensers. Both for economy and for

           ecological reasons it would be advantageous to reduce as far as possible

           the amount of propellant distributed into the atmosphere when the product

           is dispensed.

 

           The primary reference (Clark) was discussed on page 3 of the present

           disclosure in the following terms:

 

In British Patent Specification No. 875,384 there is described

and illustrated a dispensing device which makes use of a standard

can and differs from the conventional system, in which the product

to be dispensed is mixed with liquefied propellant, in that the

propellant is contained in a separate receptacle which is attached to the

dip-tube. In the assembly of the device the product to be dispensed

is filled into the can, the said receptacle is fitted to the dip-

tube which is in turn fitted to the dispensing valve. Propellant

cooled to well below its boiling point is then fed into the recept-

acle, the receptacle sealed with a plug having an opening for re-

leasing vapour, but not liquid propellant and the assembly disposed

within the can to which the valve is secured as quickly as possible.

Although this device requires the use of a reduced amount of propel-

lant compared with the case where the product to be dispensed and

propellant liquid are mixed, the device is essentially impractical in

commercial terms since it does not lend itself to a high speed filling

operation. Furthermore, because of the impossibility of preventing loss

of propellant during assembly operation, the product to propellant

ratio in the final device would be highly variable.

 

We note that the Clark patent is owned by the present applicant (Unilever Limited).

 

At the Hearing Mr. Deeth pointed out that the Clark device is so designed

that it could never lend itself to a high speed filling operation, which

"is a must in the manufacture of aerosol products." He also stated that it

was impossible to prevent the loss of propellant during the assembly operation.

The Clark patent does not disclose an inlet through an exterior wall through which

liquefied gas propellant can be introduced into the propellant reservoir. This

according to the applicant is a most important feature. The Clark patent

uses capillary openings for limiting the mixing of propellant and product. In

this application, the applicant uses a communicating one-way valve, which is

constructed so that it is closed except when opened at a predetermined pressure

differential between the product compartment and the propellant reservoir

to permit propellant in the vapour phase to pass from the propellant reservoir

to the product compartment. Clark did however, suggest that the "outlet

aperature may be in the form of valves, but are preferably small sized orifices...."

 

We note that the British "provisional specification" discussed the use of

valves, such as a Bunsen type valve. In the "complete specification" however,

all reference to the Bunsen type valve was deleted and emphasis was placed on

a "capillary tube arrangement," which is also the only arrangement shown in

the drawings. An explanation for the deletion was given by Dr. Tonge at

the Hearing. He stated that the co-inventor of the Clark patent told him

that they had thought of using valves, and did some experimenting with valves

of the Bunsen type. The valves they tested "did not operate satisfactorily;

they could not get them to work smoothly - they tended to clog."

 

The examiner also brought British Patent 399,650 into his final action to

show that a one-way rubber sleeve valve is old. It does not however show the

"septum tube 17" (see Figure 2 of the instant application supra). The septum

tube prevents the liquefied gas propellant from entering the product compart-

ment. In any event the applicant is not relying solely on the valve for

novelty, but on the combination of the dispenser as a whole.

 

The Brush patent is only concerned with low pressure has propellant systems;

a dispensing pressure of 3-10 pounds per square inch is used. This low pressure

has a direct effect on the nature of the product which is to be dispensed.

Brush states that his container is used "to dispense air sensitive liquids with

a gentle controlled flow, and without atomization or foaming or spray effect

associated with the usual aerosol container." It appears clear then that

Brush's device would be ineffective for dispensing an atomised spray, which is

one of the objectives of the present device.

 

The poppet valve used by Brush operates in a manner which is different from

valve 16 in the present application. The Brush device will operate with a

gas propellant, but it would not operate as intended with a liquefied gas

propellant. The propellant liquid would pass through the poppet valve if the

container was held in any position but upright. This would obviate the

advantages gained in separating product and liquefied propellant. The opening

and closing of the poppet valve in Brush is caused entirely by pressure

fluctuation in the upper (product) compartment, and is completely unaffected

by pressure changes in the lower propellant compartment.

 

The valve in the dispenser of this application remains closed except when

the gas pressure difference between the product compartment and the propell-

ant reservoir rises to a predetermined level. It is clear then that the

valve in Brush operates on a principle entirely different from the instant

valve.

 

The device as claimed in this application essentially consists of two compart-

ments separated by a bell-shaped interior wall. When held in the normally

upright position, an upper compartment is provided for filling with the

product to be dispensed. This is referred to as the first compartment. The

second compartment is used for charging with liquefied gas propellant. A

conventional dispensing valve is provided at the top of the container. A

second communicating one-way valve is fitted between the compartments. The

one-way valve includes an open-ended tube arranged to permit propellant gas

to pass from the propellant reservoir to the product compartment, but to

prevent passage of liquid gas propellant to the product compartment irrespective

of the position in which the dispensing device is held. The open tube ex-

tends from the interior bell-shaped wall part way into the second compartment

in such a manner that its open end remote from the interior bell-shaped wall

is always above the level of the liquefied gas propellant whatever the position

of the device. The communicating valve also prevents liquid product from

entering the reservoir compartment containing the liquefied gas propellant.

 

The applicant has made no attempt to claim the broad concept of keeping the

product separate from the propellant, but has claimed what he states is an improved

dispenser "which is both cheap and easy to construct and assemble, and which

functions to dispense the product in the substantial absence of liquefied gas

propellant."

 

It is of interest to note that the applicant has filed for patents in some

twenty countries, and has to date received 10 to 12 patents on his dispensing

device.

 We have reviewed the prior art and have considered its cumulative effect

 (see DeFrees v. D.A. Acc. Ltd., supra). We are not persuaded however, that

 the invention claimed is taught by or is obvious from the prior art, common

 knowledge or expected skill. The applicant has overcome different problems,

 especially one of packaging, and has obtained a result in a more expeditious

 manner than heretofor. For example, no step of refrigeration is required in

 the instant packaging procedure, nor is there any loss of propellant. There

 is, in our view, sufficient evidence of thought, design, ingenuity in the

 invention and novelty in the combination (see Merco Nordstrom Valve Co. v

 Corner (1942) Ex. C.R. 138 at 155).

 

 We believe that the claims on file are directed to patentable subject matter,

 and recommend that the Final Action be withdrawn, and the application returned

 to the examiner for resumption of prosecution.

 

 J.F. Hughes

 Assistant Chairman

 Patent Appeal Board, Canada

 

 I have reviewed the prosecution of this application and the recommendations

 of the Patent Appeal Board. In the circumstances I have decided to withdraw

 the Final Action, and return the application to the examiner for allowance.

 

J.H.A. Gari‚py

 Commissioner of Patents

 

 Dated at Hull, Quebec

 this 31st, day of December, 1976

 

Agent for Applicant

 

 Ridout & Maybee

 111 Richmond St. W.

 Toronto, Ontario

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