COMMISSIONER'S DECISION
Obviousness: Dyeing of Yarns
Use of variable speed means to drive the yarn through the coloring chamber
containing nozzles capable of being driven at variable speeds is shown
in the prior art. Two claims were refused.
Final Action: Affirmed.
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This decision deals with a request for review by the Commissioner
of Patents of the Examiner's Final Action dated February 21, 1977,
on application 167273 (Class 68-3). The application was filed on
March 22, 1973, in the name of Philippe D. Lapierre, and is entitled
"Apparatus For The Local Treatment Of Yarn."
This application relates to apparatus for dycing yarn in an irregular
pattern. The yarn moves at varying velocity through a dyeing chamber
to acquire the color which is applied by a variable frequency oscillat-
ing nozzle. Speed variators are used for the motor driven bobbin,
nozzle and oscillating yarn guide to obtain the variable velocity.
Figure 1 is illustrative of that arrangement.
<IMG>
In the Final Action the examiner refused claim 1 as covering an obvious
improvement in the light of United States patent 2,428,284, Sept. 30, 1947,
Krogel. Krogel is for a strand marking apparatus for marking insulated
wire provided with an absorbent fibrous sheath, such as seamless paper
pulp or served cotton. The strand moves through dyeing chambers where
variable-frequency oscillating nozzles apply the color, and the take-up
reel is driven by a speed control device. Figure 1 of the Krogel patent
is shown below.
<IMG>
In the Final Action the examiner stated (in part):
Claim 1 directed to an apparatus stands rejected as it falls
to define any subject matter distinct in an unobvious sense
from the patent to Kiogel. It is maintained that the quali-
fication of the speed regulating means as operative "while the
yarn is moving" fails to distinguish the structure recited in
claim 7 from the otherwise anticipating strand dyeing apparatus
of this reference in an unobvious way. Furthermore the recitation.
of the proposed use of tie device as for the treatment of "a yarn"
in the preamble cannot impart patentabillty to this claim.
In the instant disclosure applicant sets forth an apparatus for
the non-continuous dyeing of textile yarn where a yarn is moved
in a straight path under one or more dye-spraying nozzles which
reciprocate transversely to the path of the yarn. The
drives from winding the yarn and oscillating the nozzle
include motors and speed variators. Three embodiments are
described wherein (A) several parallel yarns are simultaneously
dyed by individual nozzles placed side by side and synchronously
oscillated (Fig. 2), (B) a single yarn h as its speed varied by
oscillating a yarn glide movably mounted intermediate two outer
flied yarn guides (figure 1) and (C) where a succession of nozzles
acting on the path of the same yarn are automatically controlled
to shift the phase of reciprocation and to vary the relative phase
shift of each nozzle relative to the others. The embodiment (A)
is not specifically defined in any of the claims. Claims 2 and
3 are directed to the embodiment (B) above. The remaining claim,
claim 1, is directed to the broad concept of a nozzle and a yarn
where the speed is variable during movement.
The United States patent to Krogel shows apparatus for dyeing an
absorbent white strand wherein a first drive with a speed control
device (15) moves the strand continuously in a fixed axial direction
through a dyeinb station which has a fluid supply nozzle mounted
therein and movable in a plane perpendicular to the yarn. A second
drive, also with a speed control device (16) reciprocates the
nozzle transversely to the yarn. Krogel teaches that the pattern
of the dyeing may be varied by varying and relative speeds by means ~
the speed control devices 15 and 16. Although Krogel does not
specify the nature of the speed control devices used, the use of a ~~
to control the speed, "while the yarn is moving" cannot be seen to
involve anything of an unobvious nature. Variable speed motors,
in which this feature is inherent are common knowledge and since
the selection of such a speed control device per se gives no result
other than that expected, namely the facility of changing speed,
it is deemed to involve merely an obvious matter of selection or
elementary design.
In response to the Final Action the applicant made an amendment to claim 1
as well as submitting a new claim 8 and said (in part):
The present invention relates to the irregular treatment, for
example irregular dyeing, of yarn. According to the invention,
the yarn is passed in a relatively fixed axial direction through
a treatment station having at least one fluid supply nozzle
movable in a plane substantially perpendicular to the yarn pass-
ing therethrough. Fluid is supplied to the supply nozzle, wich
is reciprocated in the said plane to cause fluid from the nozzle
to periodically impinge upon the moving yarn. The speed of
axial movement of the yarn through the treatment station and/or
the speed of reciprocation of tine nozzle is varied, while the
yarn is moving, to produce irregular treatment of the yarn by
the fluid.
Claim 1 is directed to apparatus for carrying out the invention,
and new claim 8 is directed to a method incorporating the
invention.
The Examiner has rejected apparatus claim 1 in view of United States
patent No. 2,428,274 (Krogel), which issued in 1947. The Krogel
patent describes strand marking apparatus, and is particularly con-
cerned with apparatus for marking insulated wire provided with an
absorbent, fibrous sheath (see the opening paragraph in column 1).
The strand marking apparatus described in the Krogel patent is
used for marking an insulating sheath for identification by applying
ink, dye or the like to create a distinctive pattern of recurrent
cycles of successive short coloured and uncoloured or variously
coloured sections (see the second paragraph in column 1).
The Krogel patent also states that it is an object of the invention
to provide apparatus for marking a longitudinally advancing strand
with a predetermin edly arranged cyclically repeated pattern of
differently coloured portions in longitudinal sequence (see the
third paragraph In Column 1).
It will therefore be noted that applicant's invention is concerned
with a completely different problem from that dealt faith in the Krogel
patent. Applicant is concerned with irregularly treating yarn,
whereas, on the other hand, the Krogel patent is concerned with a
completely opposite effect, namely the regular colouring of a strand.
Applicant's claim 1 (including the proposed amendment) calls for
the provision of regulating means operative for varying selectively
at least one of the speed of axial movement of the yarn through
the treatment station and the speed of reciprocation of a nozzle
while the yarn is moving through said treatment station during the
treatment, whereby irregular treatment of the yarn by said fluid is
effected.
The question before the Board is whether or not claim 1 as now amended and
newly added claim 8 define a patentable advance in the art. In the Final Action
the examiner only refused claim 1 as he was concerned with the scope of
monopoly of the invention defined in this claim. Claims 2 to 7 were indicated
to be allowable.
The applicant argues that his "invention is concerned with a completely
different problem" from that dealt with in the Krogel patent. He adds that
he is concerned with irregular treatment, such as irregular dyeing of yarn,
as contrasted with Krogel, who provides for a "cyclically repeated pattern
of differently coloured portiors in longitudinal sequence."
We agree that Krogel obtains a regular cyclic repeating pattern upon the
strand, as this is the form he desires to obtain. However, altering one of
the speed control devices could produce an irresular pattern as desired by
the applicant.
In his comments the anplicant admits the "mechanical differences between
applicant's apparatus and Krogel's apparatus may be small but it does not
consequently follow that the applicant's apparatus is obvious in view of the
Krogel apparatus....". At issue however, is the scope of claims 1 and 8,
and not that of the applicant's apparatus which has been indicated allowable
in the form found in claims 3 to 7 inclusive.
A major question to be resolved relates to the "speed variators" used by the
applicant, an d the "speed control device" shown in the Krogel patent.
Krogel states in column 2 at line 46 f.f. that "by varying the relative speeds,
for example by means of speed control devices 75 and 16 .... the patterning of
the product may be almost indefinitely varied ...."
The applicant maintains that since Krogel normally seeks a regular colour
relationship it requires a constant speed of movement through the treatment
station as well as a constant nozzle reciprocation in the treatment station.
On the ottrer hand the applicant stresses that his speed of axial movement
of yarn "through the treatment station and/or the speed of reciprocation of
the nozzle is varied, while the yarn is moving, to produce irregular treatment
of the yarn by the fluid...." Speed variation (as outlined by the applicant's
disclosure in relation to his figure 1) is described on page 4 at line 14 f.f. ,
which states: "All that is necessary for this purpose is to continuously
vary, for example cyclically, the speed of the yarn passing throush chamber
3 and/or the frequency of the oscillations of nozzle 8. The latter result
can easily be obtained by means of a variator 14. The reduction ratio of
the variator oscillates about a mean value which the operator can select...."
When comparing the description of "speed control demces 15 and 16" used in
Krogel with the applicant's"speed variators" 14, 17 and 25, as outlined in
the disclosure, we find that only general terminology is used. This leads
us to conclude that Krogel's "speed control device" and the applicant's
"speed variator" are components that are well known and readily available
for imparting rotation in either a variable or continuous mode.
Let us consider new claim 1 which is as follows:
An apparatus for the irregular treatment of at lesst one
yarn comprising a treatment station, first drive means for
moving the yarn to be treated continuously in a relatively
fixed axial direction through said station; at least one
fluid supply nozzle movably mounted in said treatment
station in a plane extending substantially perpendicular
to the yarn passing therethrough; means for supplying fluid to
said nozzle; second drive means for reciprocatins said
nozzle transversely of said axial direction of travel of said
yarn; and regulating means operative for varying selectively
at least one of the speed of axial movement of the yarn and the
speed of reciprocation of the nozzle while said yarn is moving
through said treatment station during the treatment, whereby
irregular treatment of the yarn by said fluid is effected.
The applicant argues that this claim calls for the "provision of regulating
means operative for varying selectively at least ene of the speed of axial
movement of the yarn through the treatment station and the speed of
reciprocation of a nozzle while the yarn is moving through said treatment
station during the treatment, whereby irregular treatment of the yarn by
said fluid is effected. Considering the discussion above about the means
used for varying the speed to obtain the desired result, we believe that
Krogel also includes means "operative" for varying selectively at least
one of the speed of axial movement or the speed of nozzle reciprocation.
Consequently claim 1 defines the limits of scope of monopoly in terms which
are too broad, covering Krogel's invention, and we recommend that it should
be refused.
Newly submitted claim 8 specifies a method of irregularily treating at
least one yarn. This claim is substantially the same as claim 1 except
that it is coucled in terms of method. It would appear that the apparatus
of the Krogel patent to vary one of the speeds (yarn or nozzle) to
"produce irregular treatment of the yarn" could be achieved without the
exercise of inventive ingenuity and the reasons for refusing claim 1
apply equally to claim 8. 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 construction, 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. Thera is not, in my opinion,
that distinction between what was known befoire, 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 the circumstances we are not satisfied that claims 1 and 8 define subject
matter which can be considered as a patentable advance over the prior art.
We recommend that the decision in the Final Action to refuse claim 1 be affirmed
and claim 8 not allowed entry into the application.
Gordon A. Asher
Chairman
Patent Appeal Board, Canada
Having considered the prosecution of this application and the recommendations of
the applicant, claims 1 and 8 as now submitted are refused. Claim 1 as now on
file is also rejected. If any appeal under Section 44 is contemplated it
must be taken within six months. Otherwise claims 1 and 8 must be removed
within that time.
Agent for Applicant
J.A. Brown
Fors, Piper & Wilbur
Acting Commissioner of Patents Suite 2010
8 King St. E.
Dated at Hull, Quebec Toronto, Ont.
this 18th. day of July, 1978