COMMISSIONER'S DECISION
Obviousness: Method for Conditioning Fabrics
The method consists of contacting fibrous material with a form-retaining base
or substrate having conditioning agents on its surface. The conditioning
takes place in a rotatable drum, such as that of an automatic laundry dryer.
The cited reference does not teach this method, and it was concluded the
claims are directed to a patentable advance in the art.
Final Action: Reversed.
*******************
This decision deals with a request for review by the Commissioner of
Patents of the Examiner's Final Action dated June 24, 1976, on application
125,551 (Class 8-93.11). The application was filed on October 19, 1971,
and is entitled "Fabric Conditioning Methods." The Patent Appeal Board
conducted a Hearing on December 7, 1977, at which Mr. P. Hammond represented
the applicant.
The application relates to conditioning fibrous materials by contacting them
with a base or substrate having a conditioning agent on a surface thereof.
The conditioning is effected in a rotatable drum, such as that of an automatic
laundry dryer. The base article, which is form-retaining, is free to commingle
with the fibrous material in the dryer. Figure 1, below, shows that arrange-
ment:
(See formula 1)
In the Final Action the examiner refused all the claims for lack of patentable
subject matter in view of the following Patent:
United States
3,442,692 May 6, 1969 Gaiser
That patent shows a flexible substrate for conditioning fabrics in a laundry
dryer. The substrate carries asoftener which is transferred to the fabrics
in a commingling action. Figure 1, below, shows that invention.
(See formula 1)
Claim 1 of that patent reads:
The method of conditioning fabrics which comprises commingling
pieces of damp fabric by tumbling said pieces under heat in a
laundry dryer together with a flexible substrate carrying a
conditioning agent to effect transfer of the conditioning agent
to the fabric while being dried.
In the Final Action the examiner had this to say (in part):
Applicant argues that his claims define an invention over Gaiser
because Gaiser does not teach a solid state form retaining base,
and because Gaiser teaches that the base is uniformly impregnated
with the fabric softener as opposted to being only surface coated
with it. The examiner agrees that these differences exist, and
also that applicants process has certain advantages over Gaiser's.
However the examiner feels that these differences and advantages
are not unobvious and their realization does not require the exercise
of inventive ingenuity.
Gainer's teachings lend themselves to obvious modifications as
to nature, form, size, method of preparation and location of the
fabric softening article. Such obvious modifications present
themselves to a person skilled in the art who has to select a
particular fabric softening article based on desired properties.
The selection of a solid form retaining base, though not specifi-
cally taught in Gaiser, is deemed a selection requiring only
expected skill and not an invention. It is well known that a
non form-retaining material, such as an article of clothing, gets
twisted and balled up in the dryer. Hence, the use of a solid,
form retaining base is obvious because it is not balled up with
the clothes, is moved around more freely and uniformly by the
vanes of the dryer and it therefore prevents staining due to
being stuck in one position with respect to the clothes. It is
these obvious properties and modes of behaviour of solid form
retaining bases that are responsible for their obvious advantages.
Furthermore, these obvious advantages present themselves to a
person skilled in the art once he is familiar with Gaiser's
basic aims that is "the provision of a simple and economic...
comingling with a substrate carrying a conditioning agent for the
fabric. . ." (column 2 lines 34-40) .
Applicant goes on to argue that "coating on at least a portion
of an exterior surface of a base ..." is also an inventive feature
of his claims. However, it is readily apparent to a person
skilled in the art that a fabric softener will be removed more
readily from a base to a fabric by either attrition or sublim-
ation if that fabric softener is located on or near the surface
of the base. Furthermore it is also deemed obvious that of is
advantageous to treat the base material with the fabric soften-
ing composition in such a way so as to allow some of the softener
to penetrate into the base and thus prevent the softener from
flaking off. Restrictions related to the amount of penetration
of the softener into the base reflect the expected skills of a
person versed in the art and not his inventive ingenuity.
The applicant in his response of September 24, 1976 stated (in part):
The present invention is for a method of conditioning fibrous
material such as clothes with a solid state, form-retaining
conditioning substance such as the spherical article shown in
Figure 1. Like the flexible substrate in the Gaiser patent,
this form-retaining article is placed in the dryer with the
clothes and is tumbled therewith. Unlike the flexible sub-
strate of the Gaiser patent, the base material is not impregnated
with the softening substance but rather it is coated on its
exterior surface with the substance. In addition there is the
requirement in claim 1 that a portion of the softening substance
penetrate the base to the extent of ten to thirty percent of the
portion exterior of the base.
Thus there are at least two important differences between the
method of Gaiser and that of the present invention and the first
of these is the use of a solid state, form-retaining conditioning
substance on the exterior surface of the base. This feature
results in a number of advantages over the prior art as explained
in the present disclosure. For example, the flexible substrate
of the United States patent may be folded during tumbling with
the wet wash and is sometimes trapped within the wash so that it
does not make free contact with all the clothing in the dryer.
This in turn can cause the clothes to be stained or spotted
because of the heavy concentration of the agent applied to one
particular area of the goods. Because the conditioning substance
in the method of the present invention is not on a flexible
material but rather is on a form-retaining exterior surface, there
is less of a tendency for the agent to flake off in undesirable
chunks. The lack of flexing of the conditioning substance prevents
tension and compressive forces from breaking up or cracking the
material.
The second main difference of the method of the invention which
is recited in claim 1 is the placing of the conditioning substance
in the form of a coating on the exterior surface of the base. It
is important to consider this distinguishing feature in combination
with the aforementioned feature of a form-retaining conditioning
substance. The two features work together in providing an important
advance over the prior art. Because the conditioning substance is
in the form of a coating on the exterior surface of a base, there
is little danger of the conditioning substance flaking off in un-
desirable chunks because of a flexing action in the dryer. Because
the conditioning substance is on the exterior surface of a base and
is therefore form-retaining, the conditioning substance can be
applied in the form of a coating having a substantial portion exterior
of the base. In fact the portion of the softening substance which
penetrates the base is only ten to thirty percent of the portion
exterior of the base. The formation of a coat on the exterior of
the base is important as it results in a maximum use of the soften-
ing substance. Any conditioning composition below the surface of
the base cannot be removed therefrom by simple abrasion of the article
with the clothes.
...
To conclude then, since independent claim 1 recites several important
distinguishing features which result in significant advantages none
of which are suggested by the cited prior art, and since none of these
features would be obvious to one skilled in the present art, let alone
the co-operating combination thereof, reconsideration and allowance
of this application are respectfully requested.
...
The question to be considered is whether or not the claims are directed to a
patentable advance in the art. Amended claim 1 reads:
A method of conditioning fibrous material with a fabric softening
substance which comprises tumbling such material in a damp and/or
heated state in contact with a solid state, conditioning substance
which is either a nonionic surface active fabric softening compound,
a water soluble anionic surface active softening compound or a mix-
ture thereof and which is transferable to the fibrous materials under
the conditions of operation, and continuing the tumbling for a period
of time long enough to apply to the fibrous materials a coating of
the conditioning substance sufficient to soften such materials,
wherein the solid state conditioning substance is in the form of
a coating on at least a portion of an exterior surface of a base
and a portion of the softening substance penetrates the base, said
portion being from 10 to 30% of the portion exterior of the base
and wherein said base is form-retaining at all times.
At the Hearing Mr. Hammond argued that the claims were patentable over the
cited reference. He raised a number of interesting points which we shall now
consider.
One of the main arguments for allowability of the claims is that the base or
substrate is solid and form-retaining whereas in the reference the substrate
is "flexible." This feature results in a number of advantages. For instance,
the flexible substrate of the reference may be folded or trapped during the
tumbling action. This can cause the clothes to be stained or spotted because
of the heavy concentration of the agent which is applied to the substrate.
Also if the substrate becomes trapped in the clothes, it will not make free
contact with all the clothes, so that there is inadequate conditioning of the
clothes.
A second argument made is that the conditioning substance is in the form
of a coating on the exterior surface of the solid substrate, and this allegedly
works better than if the conditioning agent penetrates throughout the substrate.
Mr. Hammond also argued that there is less flaking-off from a solid base
than a flexible base, but we do not find this a strong argument because a
large part of the drying cycle takes place at temperatures where the condition-
ing substances are softened, and not prone to crack or flake-off. Another
point raised was that the applicants conditioner has the advantage that it
is re-usable, whereas the prior art means are used only once.
We have concluded that the combined affect of all the above-mentioned
features results in the maximum use of the conditioning substance. We be-
lieve that the cited art, which emphasizes and claims the use of a flexible
substrate, would lead one away from using a form-retaining or solid substrate.
Furthermore, one might anticipate that tumbling solids in a drier would create
problems, and be led away from what this applicant now teaches. Consequently,
although the advance made in the art may not be great, we are satisfied that
the applicant has achieved here a result in a more expeditious manner than
that taught in the patent cited by the examiner. The present method apparently
gives better and improved results.
We are not satisfied, however, with the scope of amended claim 1, especially
in one area. It states that the "base is form retaining...." This of course
covers any shape, and some shapes, without doubt, would become trapped in
the clothes. Thus claim 1 in its present form should be refused. The claim
should be amended in the last line to specify that the "said base is form -
retaining and of such a shape that permits effective tumbling action...."
Claims 2 to 12, which depend directly or indirectly on claim 1, add such
things as variations in temperature and type of, proportion or dimensions of the
conditioning agent. These features however, do not make these claims patentable
over refused claim 1. Claims 2 to 12 in themselves are not allowable, but
would be acceptable if dependent upon a claim 1 amended as directed above.
We also believe that in claim 3 "form-retaining" should be changed to "solid."
We recommend that the decision to refuse the claims be affirmed, but that the
claims be accepted when amended as suggested, or by some similar amendment.
J.F. Hughes
Assistant Chairman
Patent Appeal Board, Canada
I have reviewed the prosecution of this application and I concur with the
recommendation of the Patent Appeal Board. Accordingly, I refuse to allow
amended claims 1 to 12, but I will accept the claims when amended as discussed
by the Board. The applicant has six months within which to submit an appro-
priate amendment, 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
Smart & Biggar
P.O. Box 2999, Station D
Ottawa, Ontario
K1P 5Y6
Dated at Hull, Quebec
this 22nd. day of December, 1977