COMMISSIONER'S DECISION
Obviousness; Reissue: Spreader Shower for Papermaking
The spreader shower simultaneously flattens or spreads and cleans the
fabric endless belts in the Fourdrinier section of a paper making
machine. After the rejection the applicant submitted restricted claims
which were found to be allowable.
Final Action: Affirmed - amended claims accepted
********************
This decision deals with a request for review by the Commissioner of Pat-
ents of the Examiner's Final Action dated July 28, 1976, on application
225,21 (Class 92-25). The application was filed on April 21, 1975, in
the name of Robert A. Truesdale et al, and is entitled "Spreader Shower."
This is a reissue application of patent 952,750. That patent, according to
the applicant, is defective for the reason that the Patentee claimed less
than he had a right to claim as new.
On August 17, 1977 the examiner and members of the Patent Appeal Board
visited the G.I.P. paper mill at Gatineau, Quebec to view the spreader shower
of the instant application installed in the papermaking apparatus. We might
add at this time that it was a most interesting demonstration of how the
device would perform in operation.
Following the visit to the paper mill a meeting was held at the Patent Office
with Mr. M. Sher, the Patent Agent, Mr. J.G. Buchanan, co-inventor and
Manager of the applicant's Company, and Mr. J. Hodson, a representative of
the Company. At that meeting it was made clear by the Board that: 1) any
allowable claim must be narrower in scope than the claims cancelled in the
parent application, and 2) any allowable claim must distinguish from the
teaching of the cited art. These points will be discussed later.
The application relates to a spreader shower (11) for simultaneous spreading
and cleansing the fabric endless belts in the Fourdrinier section of a
paper making machine. Figure 1, shown below, is illustrative of that arrange-
ment:
<IMG>
In the Final Action the examiner ably presented his position in a detailed
action where he determined that the applicant was not entitled to obtain
reissue for his patent on the present claims, because the claims were of
the same scope as some of the originally cancelled claims, and furthermore
the claims do not patentably distinguish from the cited art. Another ground
was failure to establish that there was an error by which the patent was
rendered defective.
We find that there is no need to give the position of the examiner in the
Final Action in any more detail, or to comment on the response by the applicant,
because at the meeting of August 17, 1977, the applicant stated, after a
discussion of the problems, that he was willing to further amend the claims
and indicated what amendments he might be willing to make.
On September 29, 1977, the applicant submitted his amendment to the Board.
In that amendment he stated (in part) as follows:
. . .
Applicant's agent would take this opportunity to thank Messrs.
Hughes, Kot and Barber for taking the time to visit, with the
representatives of the applicant, the CIP paper mill at
Gatineau, Quebec to view, first hand, the spreader shower of
the instant application installed in the papermaking apparatus,
and for the courtesy extended in granting a meeting following
the visit to the mill. As per the discussion during this meeting,
applicant is submitting herewith a new set of claims in an
effort to advance the prosecution of this application to allow-
ance. In the new claims, paragraph 6 of claim 1 and paragraph
11 of claim 5 have been amended to read as follows:
"whereby each of said nozzles forms an angle of
between 10· and 60· with the longitudinal axis
of said pipe means, all of said angles formed
between said nozzles and said longitudinal axis
being substantially equal".
As discussed at the meeting, there were basically two issues to
be attacked:
1) It was necessary to amend the claims to include further
limitations which would further distinguish the claims from
the claims as originally filed in the original application.
2) It was necessary to add further limitations to further
distinguish the claims in the application from the teachings
in the Ingham et al and the Di Corpo patents of record.
It is submitted that both of these issues are met with amended
claims 1 and 5. As pointed out during the meeting, the claims
did not, either during the prosecution of the original
application or the present reissue application, contain the
limitation that all of the angles formed by the nozzles are
substantially equal. Thus, the claims distinguish from the
claims as originally filed in the original application, as well
as claims which appeared in the applications during the pro-
secution of both the original application and the present re-
issue application.
. . .
Considering the patentability of the new claims versus the teach-
ings in the references of record, figure 2 of Di Corpo and figure 7
of Ingham et al illustrate that it is contemplated, in accordance
with the teachings in the patents, that the angles formed between the
nozzles and the longitudinal axis of the respective pipes, vary
along the length of the pipes. Specifically, the angles decrease
from the center to the outward edges of the respective pipes.
Further, there are comments in both of these patents which indicate
that such an arrangement of different angles are necessary for
the operation of the Ingham et al and Di Corpo devices, so that
there is no incentive for them to make all of the angles equal.
Referring first to the Ingham et al patent, at column 1, line 15,
the patent recites "This fan-like spray pattern is obtained
either by the use of a straight spray tube with nozzles set into
it at different angles, or by a spray tube bent into the shape
of an arch....". As the spray tube of Ingham et al must have a
fan-like spray pattern, it would go contrary to the teachings of
Ingham et al to have all of the angles equal to each other.
In a like manner, the device of Di Corpo must also have a fan-type
spray. This is discussed at column 3, lines 6 et seq. of Di Corpo
which recites:
".... of a fan-type spray. This is due to the
different angles of the bores through the manifold
block with respect to the center line of the tube
as well as the different angles of the bores in the
valve member with respect to the corresponding
bores through the manifold."
Although Di Corpo does mention different specific angles at
line 16 et seq. of column 3, it is believed that this refers to
a different set of differently angled nozzles. It does not
refer to an arrangement wherein all of the nozzles are at the
same angle.
In view of these comments in the cited references, it is sub-
mitted that there would not be any incentive to make all of the
nozzle angles in Di Corpo and Ingham et al of the same size,
but rather, would go against the teachings in the cited refer-
ences. Accordingly, it would not be obvious to modify the
devices in the cited references in accordance with the limita-
tions in new claims 1 and 5 so that claims 1 and 5 distinguish
patentably from the teachings of the cited references.
As will also be recalled, the question of lack of error was also
discussed at the meeting. Mr. Buchanan once again outlined the
steps which led to the incorrect and erroneous claiming of the
invention as per the issued patent. In this regard, Mr. Buchanan
spoke both as a co-inventor of the present invention as well as
a Manager of the applicant company concerned with the obtaining
of patents. The facts, as presented by Mr. Buchanan at the
meeting, were, of course, in conformance with the facts as
presented in the various communications from the applicant to
the Canadian Patent Office. However, at the meeting, the stater
of the facts was, of course, available for questioning. Further,
because the facts were orally presented, it is believed that it
was possible for the Examiner and the members of the Board of
Appeal to appreciate that the change of focus in the claims arose
as a result of error which was inadvertent. It is therefore
once again submitted that the situation as described by applicant
at various times comes within the scope of Section 50(1) of
the Patent Act so that the reissue application should be allowed.
. . .
After carefully studying the prosecution of this application including all
of the arguments raised by the applicant and the examiner, we have no hesita-
tion in agreeing with the examiner that the claims at the time of the Final
Action were properly refused.
In considering the amendment of Sept. 29, 1977 we find that the applicant has
restricted independent claims 1 and 5 by adding the phrase "all of said angles
formed between said nozzles and said longitudinal axis being substantially
equal." Claims 1 and 5 are no longer of the same or of broader scope than
those cancelled during prosecution of the original application. That re-
jection has been overcome.
Claim 1 with the amendment now reads as follows:
A spreader shower for use in a paper making machine of the
type having at least one endless fabric belt driven by a
driving roll, the endless fabric belt having a high tension
portion and a low tension portion, the high tension portion
being disposed in that portion of the belt preceding the
driving roll in the direction of travel of the belt, and the low
tension portion being disposed in that portion of the belt
following the driving roll in the direction of travel of the belt;
said spreader shower comprising: a series of spreading nozzles
joined by an elongated pipe means for providing fluid under
pressure to said nozzles, said nozzles having outlet ends; the
outlet ends of substantially all of said nozzles, located in
that portion of the shower extending substantially from the
center of the pipe means to the left hand end thereof, being
slanted toward the left hand end of said pipe; the outlet ends
of substantially all of said nozzles, located in that portion
of the pipe extending substantially from the center of the pipe
to the right hand end thereof, being slanted toward the right
hand end of said pipe; whereby each of said nozzles forms an angle
of between 10· and 60· with the longitudinal axis of said pipe
means, all of said angles formed between said nozzles and said
longitudinal axis being substantially equal; said pipe means
being adapted, in operation, to be disposed across the width of
said endless fabric belt and in substantially parallel align-
ment with and in close proximity to a surface of said endless
fabric belt; the pipe means being so arranged that the outlet ends
of said nozzles are directed to said surface of said endless
fabric belt in said low tension portion thereof; whereby, in
operation, fluid emerging under pressure from the outlet ends
of said nozzles will impinge on said surface of said endless
fabric belt and will be directed substantially toward the
lateral edges of said endless fabric belt, whereby to spread the
endless fabric belt in its lateral direction.
That claim now also overcomes the rejection of former claims 1 to 4 based
on prior art. The references do not show nozzles oriented at equal angles.
Clearly the claim is now directed to a novel combination and we are satis-
fled that there is ingenuity in the inventive concept. The amendments
to claims 1 and 5 have also circumvented the ground of "failure to establish
that there was an error by which the patent was rendered defective."
We are satisfied and the examiner agrees that the amendment has fully
overcome the rejections in the Final Action. We recommend that the amend-
ment be entered. This will place the application in condition for
allowance.
J.F. Hughes
Assistant Chairman
Patent Appeal Board, Canada
I have reviewed the prosecution of this application and I concur faith the
recommendations of the Patent Appeal Board. Accordingly, I accept the
amendment of September 29, 1977. The application is returned to the examin-
er for resumption of prosecution.
J.H.A. Gari‚py
Commissioner of Patents
Agent for Applicant
Alan Swabey & Co.
625 President Kennedy
Montreal, Quebec
H3A 1K4
Dated at Hull, Quebec
this 18th day of November, 1977