Patents

      COMMISSIONER'S DECISION

 

   ORVIOUSNESS: Hand Clothes Washer

 

   A large diameter tube closed at each end with corrugations on one wall is

   shown in the prior art. Applicants argument that his washing action is

   different from the prior art were refuted.

 

   Final Action: Affirmed

 

. . . . . . . . . . .

 

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

   Patents of the Examiner's Final Action dated February 6, 1976, on applica-

   tion 143,585 (Class 68-47). The application was filed on May 31, 1972,

   and is entitled "Washer." The Patent Appeal Board conducted a Hearing on

   September 28, 1977, at which Mr. N. Hewitt represented the applicant.

 

   This application relates to a device for washing clothes by hand. It con-

   sists of a large diameter to be closed at each end and at least one part of

   the tube has intruding corrugations therein. Figure 1 shown below is

   illustrative of that arrangement:

 

       <IMG>

 

   In the Final Action the examiner refused the claims for failure to define

   any patentable improvement over the following references.

 

   Belgian Patent       539,690     July 17, 1957           Scevola

   Canadian Patent      375,067     July 12, 1938           Murray

  Scevola relates to a device for washing clothes by hand. It is composed

  of two component cylindrical members which are threadably attached to each

  other, each member has a perforated disc and the longer cylindrical member

  has a series of internal bump type hemispherical protrusions. That invention

  is illustrated by the following drawing:

 

                         (See formula 1)

 

   The Murray patent is for a hand clothes washer consisting of two attached

  spherical members with corrugations therein. An access cover is provided at

  one end. Figure 4 of Murray is shown below:

 

                      (See formula 2)

 

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

 

The Canadian patent to Murray shows all of the structural limit-

  ations recited in claim 1 including non-restricting corrugations

  except the rounded shape of the one end and the between-end

  location of the access means. The Belgian patent to Scevola

  similarly shows all of the structure recited in this claim except

  for the rounded shape of both ends and the corrugated shape of

  the intrusions. However the disclosure does not teach that the

  rounded shape of the ends to be of any benefit but states that

  the rounded shape can be improved by being "deformed" so as "to

  be concave to assist in promoting turbulence". In view of this,

  it is obvious that the recital of the ends as rounded cannot

  help to distinguish claim 1 from either of the references in an

  unobvious or patentable sense. Also, it is obvious that the mid-

  way location of the access means is of no significance and a

  reading of the disclosure confirms this, since it teaches that

this means may be at one end. Similarly whether the intrusions

in the shell are bumps as shown by Scevola or "corrugations" as

defined cannot be seen to involve anything of a patentable nature

particularly in view of the emphasis placed on the non-constricting

nature of these intrusions both in the claim and also in applicant's

arguments. Furthermore claims 2 to 8, 10 to 13 and 15 specifying

various arrangements of corrugations, a lateral opening, a concave

end, a duct, a drainage plate, a stopper, a cap and two halves etc.

add nothing of an inventive nature to claim 1, and fail to define

structure distinct in a patentable sense from that of either of

the references. With respect to claims 9 and 14, (formerly claims

8 and 13) these dependent claims recite only process of manufacture

limitations, which cannot be relied upon to impart patentability

to the previously defined and otherwise unpatentable product

structure.

 

There is not shown to be any substantial advantage peculiar to a

range of internal constriction ratios and this therefore obviously

involves merely a matter of degree or relative size. In the absence

of any specific limitation in this respect in the claims, applicant's

arguments that the projections of Scevola are too shallow and the

central constriction of Murray is too significant, to promote

tumbling is not seen to be relevant.

 

In his response to the Final Action the applicant stated (in part):

 

Turning now to the specifications cited by the Examiner and which

we note are being cited separately and not in combination, we will

comment first on the Canadian patent to Murray. The Examiner

alleges that all the features in claim 1 including the non-restricting

corrugations [are shown by Murray]. It has already been stated that

the claimed invention is concerned with an article in which the

washing action is one in which articles move from one end to the

other freely whilst undergoing a tumbling action because of the

shape of the apparatus. This cannot possibly be the case in the

cited patent. Each of the two spheres is described as being

sufficiently large to contain all the articles being washed. If

the Examiner is of the opinion that the smaller amplitude corrugations

fall within the corrugations specified in claim 1 then he is incorrect

since they cannot promote tumbling at the same time as offering a

washboard effect (see page 4 of the patent, line 4). If on the other

hand the Examiner is of the opinion that the neck in between the

two halves is what constitutes the corrugation claimed in claim 1

of the present application then again he is incorrect since the

purpose of the neck is to provide a constriction which results in

the clothes being rubbed against the corrugated surface acting as a

washboard. Therefore essential neck is intended to be a constriction

and the washing action is achieved by moving the articles from

one end to the other and at the same time rubbing against the

washboard provided by the small corrugations. The washing action

is decidedly different and there is nothing whatever in this Canadian

patent which suggests that instead of rubbing surfaces of the

articles being washed against a washboard like surface one can

simply allow them to tumble freely from one end to the other. It will

of course be realized that corrugations acting as a washboard are

entirely different from corrugations causing tumbling since in

one case it is required that an article remain flat and be rubbed

against the corrugations whereas in the other case the article is

not required to slide relative to the corrugations but to roll on

them. The teaching of this Canadian patent is therefore if

anything, diametrically opposed to the washing principle of the

article in the present application.

 

The Belgian cited patent does not show an elongate container.

The claim does not specify what is meant by elongate though the

specification gives a typical value of at least 4 to 1. As has

already been mentioned the precise limiting value need not be

specified in the claim since the limits of elongation and of

the corrugations are already characterized by the function which

they provide.

 

The question to be considered is whether the applicant has made a patentable

 

advance in the art.

 

Claim 1 of the application reads:

 

A manual apparatus for washing articles of clothing, which com-

prises an elongated substantially tubular member made of a synthetic

polymeric material, said member being closed at each end, and

each such end having a rounded configuration, and a water-tight

disengageable means between the ends of the said member for

providing access to the interior of the member, said tubular member

having a plurality of corrugations intruding transversely into

the interior thereof without substantially constricting the interior

of the member to promote turbulence of the water and tumbling of

articles of clothing when the member is partly filled with water

and said articles of clothing and shaken and thereby aid in the

washing of said articles of clothing in said water.

 

At the Hearing Mr. Hewitt emphasized that the action achieved by the applicant's

device is a "tumbling" action as compared to the "washboard" action of the

cited prior art. This "tumbling" action allows the contained articles to

tumble within the confines of the washing device.

 

Scevola with its jar like configuration uses small hemispherical protuberances

on the wall to effect a rubbing action on the clothes when the device is

agitated. The applicant argues that the ratio of length to diameter of Scevola

is not conducive to the tumbling action obtained by his device. He states

that a critical feature of his device is "that the tubular member is elongated

and has sufficient elongation to provide for a tumbling action." Further

according to the applicant, Murray cannot provide a tumbling action due to

the area of restriction between the two spherical like members. He adds

that Murray's rib-like corrugations on the walls only serve to

provide a "washboard" cleaning action.

 

We will now attempt to ascertain the manner in which the washing action takes

place in a hand washer of this type. In the applicant's disclosure as original-

ly filed he describes the action on page 1 at line 10 "as the tube partly filled

with water is shaken" and the last paragraph of this page reads "the tubular

member, when partly filled with water and detergent can be used for washing

clothes by agitation along a longitudinal axis." Murray at page 9, line 18

describes the washing action as "the user fills the flask about half full of

water ... and shakes the contents back and forth over the ribs or other

corrugations in the waist and/or in the bowls." Scevola states his washing

method as "agite fermement."

 

Therefore, it would appear that the basic requirement of this type of washing

device is the shaking intensity to be provided by the individual user. At

the Hearing Mr. Hewitt accentuated the "tumbling" action of the applicant's

configuration as compared to the "washboard" action of the two citations.

Since the intensity of movement (shake) appears, without any doubt, to be

the governing feature in the use of this type of device, we feel that this factor

will determine the motion of its contents. If the motion does not exceed

the gravitational force then the contained garments will slide on the bottom

of the device and would follow along that contour. Thus in the applicant's

washer the clothes would slide along the surface of the serpentine configuration.

Similarly for the same motion for either Murray or Scevola the clothes will

also move along the bottom surface.

 

When a shaking motion that exceeds gravitational force is used then the contents

are suspended in the device and would tend to be in a "semi-floating" position

and move from end to end of the enclosing space.

 

Granted the configurations of the container will have some effect on the

"washing action" at certain shakespeeds, but we conclude the operator's shak-

ing speed is the primary contributor to the pattern of motion of the contents.

Under these circumstances we fail to see any essential difference between

"tumbling" versus "washboard" as outlined at the Hearing.

 

The applicant advances the argument that his ratio of length to diameter of 4:1

with a plurality of corrugations and rounded end members does promote turbulence

of water to give him the "tumbling" action. Here again, in our view, the

primary contributor of the contents motion is governed by the shaking intensity

of the user and not by the peripheral contour of the device.

 

In discussing the Murray citation the applicant contends that the restriction

between the two spheres prevents the "tumbling" action. We note that Scevola

does not have any restriction in its construction and presumably the articles

would move unrestrictedly within the container confines. As we have stated

before, we believe that the shaking intensity is the governing factor on the

articles' movement in the container.

 

Granted the citations do not fully anticipate the configuration used by the

applicant. The use of corrugations however, on the walls of a hand clothes

washer is well known. We believe what Mr. Justice Maclean said, in Niagara Wire

Weaving v Johnson Wire Works Ltd.(1939) Ex. C.R. at 273, is pertinent: "Small

variations from, or slight modifications of, the current standards of construct-

ion, in an old art, rarely are indicative of invention; they are usually obvious

improvements resulting from experience and the changing requirements of users,"

and at page 276, "No step is disclosed there which could be described as

invention. There is not, in my opinion, that distinction between what was known

before, and that disclosed... that called for that degree of ingenuity requisite

to support a patent. If those patents could be supported it would seriously

impede all improvements in the practical application of common knowledge."

 

In summary, claim 1 is essentially directed to a hand container for washing

clothes. The container is comprised of an elongated tubular member closed

at each end. The tubular member having a plurality of corrugations intrud-

ing transversely into the interior of the member. These corrugations promote

turbulence of the contents (water and articles of clothing) when put to

use by shaking the container. This is clearly what the prior cited references

teach. The arguments of alleged differences in the washing action is merely

academic.

 

In view of the above considerations we are constrained to conclude that claim 1

is not directed to a patentable advance in the art. We recommend that claim 1

should be refused.

 

Claims 2 to 8 and 10 to 13, which depend directly or indirectly on claim 1,

relate to: handles for gripping, drainage plates, stoppers and different type

corrugations. We do not find that these add any patentable significance to

refused claim 1. The same arguments used in refusing claims 1 apply equally to

these claims. Claims 2 to 8 and 10 to 13 should also be refused.

 

Claims 9, 14 and 15 were refused by the examiner, and properly so, since they

would protect exactly the same apparatus as we have already found unpatentable

(cf. Hoffman La Roche v Commissioner of Patents, 1955, S.C.R. 414), There was

a lengthy discussion at the Hearing whether the process steps found in these

apparatus claims might be patentable if presented as process claims. We think

it is questionable that they would in fact be patentable, but since such claims

are not on file, nor examined, we feel we should not express a final conclusion

on that point.

 

We recommend that the decision of the examiner to refuse claims 1 to 15 be

affirmed.

 

J.F. Hughes

Assistant Chairman

Patent Appeal Board, Canada

 

I have studied the prosecution of this application and I concur with the

recommendation of the Patent Appeal Board. Accordingly, I refuse to grant

a patent on claims 1 to 15. The applicant has six months to cancel claims

1 to 15, but if he so desires, he may resubmit claims 9, 14 and 15 in

appropriate form for further prosecution, or to appeal my decision under

the provision of Section 44 of the Patent Act.

 

J.H.A. Gari‚py

Commissioner of Patents

 

Agent for Applicant

Marks & Clerk

Box 957, Station B

Ottawa, Ontario

 

Dated at Hull, Quebec

 

this 28th. day of October, 1977.