COMMISSIONER'S DECISION
ANTICIPATION: Vehicle Wheel System
A pair of endless drive chains carrying a series of wheels thereon is
shown in the prior art. The inventor prosecuted the application herself,
and failed to comment on the applicability of Section 28(1)(b).
Final Action: Affirmed
...........
This decision deals with a request for review by the Commissioner of
Patents of the Examiner's Final Action dated November 24, 1976, on appli-
Cation 193,816 (Class 280-70), and is entitled "An Improvement Relating
To Vehicles."
The invention claimed relates to a vehicle wheel system using a pair of
endless chains carried adjacent either side of a support frame member.
The chains are used to drive and carry a series of wheels which move back
along the ground under the vehicle and then circulate forward off the
ground to the front of the vehicle. The chains are always in peripheral con-
tact with the support frame as they pass from end to end above and below the
support frame. Reproduced below is figure 1 of the application to show a side
view of the applicant's arrangement, and Figure 2 which is the plan view.
<IMG>
In the Final Action the examiner refused the application for failing to
define patentable subject matter over the following reference:
Canadian Patent 710,092 May 25, 1965 Fisher
Fisher describes an amphibious vehicle supported by two sets of track
wheels having their axis arranged for movement along the sides of the body
or frame. The sets of track wheels travel in endless paths lengthwise of
the vehicle to provide support and propulsion. Figure 1 of Fisher is
shown below.
<IMG>
Claim 1 of Fisher reads:
Means for supporting a vehicle body upon a ground surface and
for imparting movement to the body over the ground surface and
comprising a pair of driven endless horizontal belts, each belt
extending lengthwise of one side of the vehicle body and mounted
upon a set of vertical pulleys carried upon the side of the
vehicle body, one pulley of each set being actuated by a power
unit in the vehicle, two sets of ground engaging track wheels,
each set being carried by one of the said endless belts, said endless
belts and their supported track wheels comprising top and bottom
wheel lays, the wheels being carried for free rotation upon
horizontal axles attached in spaced relationship to the faces
of the belts and having portions protruding from the side edges
of the belts and upon which portions the wheels are freely mounted,
longitudinal outboard members protruding from and extending
lengthwise of the sides of the vehicle body and having lower faces
bearing in frictional contact upon the top portions of the bottom
wheel lays and whereby the outboard members and the vehicle body
are supported by the bottom wheel lays, rotation of the endless
belts exerting a pulling force along the axles of the bottom wheel
lays whereby frictional contact of the wheels of the bottom
lays with the ground surfaces and with said lower faces of the
outboard members rotates the wheels to impart movement to the
vehicle body.
The examiner refused the application for the following reasons:
Fisher describes a wheel system wherein an endless chain, driven
by chain wheels, passes from end to end of a vehicle above and
below a support frame. This chain carries ground wheels rotating
on transverse axles carried by the chain. When the ground wheel
passes below the support frame, from front to back, the ground wheel
is in rolling contact with the ground and the under surface of
the support frame. When the ground wheel passes around the rear
chain wheel the ground wheel returns to the forward end of the
vehicle in rolling contact with the upper surface of the support
frame. This system described and claimed by Fisher is the same
system devised by the applicant and described and claimed in
this application.
Section 28(1)(b) of the Canadian Patent Act states that an in-
ventor may obtain a patent for an invention if the invention was
not described in any patent or any publication printed in Canada
or in any other country more than two years before presentation
of the petition for patent on filing the application. This
presentation date is the applicant's filing date of March 1, 1974.
The Fisher patent does describe the applicant's system and also
issued and was published on May 25, 1965. Therefore the Fisher
patent described the applicant's system almost nine years before
the applicant filed his application on March 1, 1974. This is
almost seven years later than the two year period allowed by
Section 28(1)(b). In view of the presence of the Fisher patent,
and the nine year time interval, Section 28(1)(b) does not allow
a patent to be issued to this applicant for the same invention as
described by Fisher. Only one patent may be issued for one in-
vention. Fisher invented and patented the wheel system before
the applicant and therefore a patent may not be issued to the appli-
cant on this application.
Applicant's attention is directed to the letter from Spruson and
Ferguson patent attorneys to T.J. Purcell & Company dated June 25,
1976 which letter the applicant placed on the file of this appli-
cation. This letter refers to the corresponding United States
application No. 446,927 and British application No. 9020. During
the examination of the United States and British applications
references were found by the respective United States and British
examiners which taught and showed applicant's wheeled support
system. The presence of such references as well as the cited
Canadian reference to Fisher show that the applicant's system is
not new. To obtain and support a valid patent a device must be
new as well as useful and inventive. Any second patent which
mistakenly issued on the same device would not offer the applicant
any supportable patent protection and would be of no benefit to
the applicant. Section 28(1)(b) of the Canadian Patent Act
prevents the issuing of such worthless patents on devices which
are no longer new.
The applicant has responded with three hand written letters which were re-
ceived on Jan. 17, 1977 and Sept. 30, 1977. These responses describe the
history of prosecution of the corresponding applications in the United King-
dom, the United States and Australia, and indicate the applicant's desire to
obtain a valid patent in Canada so that protection would be extended to the
abovementioned convention countries. In these letters the applicant states
that Fisher does not disclose the novelty of the application. There is no
argument to indicate how the applicants device is patentable over the citation.
We wish first to point out to the applicant that a Canadian patent affords
protection to a patentee in Canada only. In order to obtain protection in
any other country the applicant must obtain a patent in each country where
protection is desired. Perhaps the applicant is confused with the term
"convention" country used in Section 29 of the Canadian Patent Act. That
Section provides priority with respect to filing date of an application in
a convention country. If an application is filed in a convention country,
it can be filed within twelve months in another convention country and be
entitled to the earlier filing date. A patent in one convention country
does not, however, provide any patent protection in another country.
Looking at the description of the applicant's device, we find on page 2 of
the disclosure at line 27 that "the invention in general form includes a
support having a surface about which a plurality of rotatable bodies roll,
means permitting a portion of rolling surface of at least one body being in
contact with the support surface when another portion of said rolling surface
is in contact with a base surface, roadway or track thereby allowing the
support to move relative to the base surface." Further the applicant
indicates that the system is adapted "for use as a watercraft or water transport
means." Description of the power source for this vehicle is described as
"effected by means of any mover system or energy means as jet engine."
Considering the Fisher patent for an amphibious vehicle, which was cited by
the examiner, we find that it utilizes a wheel system wherein a set of chain
tracks driven by chain wheels move in endless paths along the sides of a
vehicle body, carrying ground wheels which rotate on transverse axles
carried by the chain tracks. These ground wheels are in rolling contact with the
ground when passing from front to back below the support frame, and are in
rolling contact with the frame when moving from back to frost.
Comparison of the applicants' arrangement with that of Fisher shows them
to be nearly identical. The applicants have not discovered any new principle
in their arrangement, nor have they described any novel method of application
of this principle. We find that the applicants' system for facilitating
motion of a vehicle is anticipated by the Fisher patent.
To obtain a patent in Canada an applicant must satisfy Section 28 1(a) of
the Patent Act, which requires that the invention was not known or used by
any other person before the applicant invented it.
As is clearly shown in the Fisher patent, the applicants' arrangement was
known and used. The applicants are consequently not entitled to obtain a
patent, as this would be contrary to the provisions of Section 28 of the Patent
Act.
We note from the applicants' letters that the corresponding applications in
the United States, Australia and Great Britain were also refused.
We recommend that the decision in the Final Action to refuse the application
be affirmed.
Gordon A. Asher
Chairman
Patent Appeal Board, Canada
Having considered the prosecution of this application, and the recommendations
of the Patent Appeal Board, I find that the alleged invention is not patent-
able. The application is refused as required by Section 42 of the Patent Act.
Under Section 44 an appeal may be taken to the Federal Court of Canada
provided such appeal is commenced within six months of the date of this decision.
J.H.A. Gari‚py
Commissioner of Patents
Dated at Hull, Qu‚bec
this 25th. day of October, 1977
Agent for Applicant
Kathleen M. Kemeny
2/653 Old South Head Rd.
Vaucluse 2030
Australia