COMMISSIONER'S DECISION
Obviousness: Composite Paving Blocks
The invention is a prefabricated pavement stone made with predetermined
patterned rupture lines, along which the block breaks when put under
stress, said rupture lines being so arranged that the fragments interlock
to retain the basic shape of the pavement. Some of the more restricted
claims were allowed.
Final Action: Reversed (in part)
*************************
This decision deals with a request for review by the Commissioner of
Patents of the Examiner's Finial Action dated September 22, 1976, on
application 179,516 (Class 94-6). The application was filed on August
23, 1973, in the name of Reinhard Jordan et al, and is entitled "Composite
Paving Structures And Units And Processes For Making Them." The Patent
Appeal Board conducted a Hearing on July 12, 1978, at which Mr. Brian
Long represented the applicant. Also in attendance was Mr. Fritz von
Langsdorff, one of the inventors.
The application is directed to composite paving structures, relating in
particular to a group of units which form a pattern, and are called
"laying units." These units are placed on a prepared substructure. The
units are mode from a group of elements adjoining at their respective
peripheries and are hold together by predetermined rupture zones. Figure S
shown below, is illustrative of that invention.
<IMG>
Ir the Final Action the examiner refused all of the claims in view of
the following patents:
Austrian Patents
219,641 July 15, 1961 Kellner & Co.
208,915 Oct. 15, 1959 Plotner
French Patent
1,225,841 Sept. 2, 1960 Kellner & Co.
British Patents
1,197,301 July 1, 1970 Meijden
1,156,654 July 2, 1969 Shute et al
United States Patents
3,340,660 Sept. 12, 1967 Acari
3,491,266 Feb. 10, 1970 Baumberger
3,304,673 Feb. 21, 1967 Ramoneda
Swiss Patent
446,416 Mar. 15, 1968 Frei
Canadian Patent
89,407 Oct. 4, 1904 Porten
The Austrian patent to Kellner shows a paving stone structure wherein offset
stones are provided to connect precast sections. There is however, no
teaching that the units are laid with the recesses facing each other. Figure 1
below shows that arrangement:
<IMG>
Figure 3 of that patent, shown below, also shots lines of weakness forming
a unified pattern in the precast paving stone structure:
<IMG>
Figure 2 of Frei, below, shows the use of linking stones in precast
concrete:
<IMG>
Patterned grooves are shown in a precast unit in the French patent to
Kellner and the patents to Acari, Ramoneda and Plotner.
Baumberger and Meijden both show interlocking type blocks. The patent to
Porter shows a band-hold for a concrete block.
In the Final Action the examiner had, inter alia, this to say:
...
In reply to this separate linking stones are known in the
precast concrete art and shown in the patents to Fre~,
Romoneda and Shute et al and are considered common general
knowledge in the art. The structure shown in Fig. 1 of
Austrian patent 219,641 must be continuously offset to be
interdigitated, having three projections and two recesses
at each end. The use of linking stones in a structure such
as that of Austrian patent 219,641 is not considered
inventive in view of the patent to Fre~. The patent to
Porter shoes a hand hold for a concrete block. To apply these
teachings to a paving stone does not amount to invention.
Lines of weakness formed in the precast paving stone structure
form a unified pattern In the Austrian patent to Kellner & Co.
The formation of these lines of weakness, together with a
detailed discussion of utility is found in the French patent
to Kellner & Co.
The pattern of linking stones, wherein interlocking or net is
not mentioned in applicant's claim 1 and furthermore is not
considered inventive in view of common knowledge in the art.
No un~bvious result occurs from using interlocking stones in
view of the patent to Meijden which shows such an interlocking
pattera. Applicant states in his disclosure that the pattern of
the individual stones is known.
Patterned grooves are shown in a precast unit in the French
patent to Kellner & Co. and in the patents to Acari, Ramoneda
and Plotner.
Interlocking blocks are shown in the patents to Baumberger and
Meijden.
The teachings concerning precast units with preformed lines of
weakness are clear. To apply these teachings to an interlocking
stone such as that of the patent to Meijden does not amount
to invention.
...
Just prior to the Hearing the applicant submitted a new set of 29 claim
and had this to say (in part):
...
In addition, the statement of invention bridging pages 1 and 2
is hereby amended to correspond to the new claim 1.
To facilitate examination of the nest claims, it is firstly pointed
out that the new claim 1 submitted herewith, which is the broadest
claim in the application, is narrower in scope than the broadest
claim which was in the application on issuance of the Final Action,
and consequently no additional searching by the Examiner should
be required as a result of this amendment.
New claim 1 has teen amended to avoid reciting that the recesses
in tire lateral sides of "mirror images of each other" since such
wording clearly excludes disclosed embodiments of the invention
which it is clearly the applicant's wish to protect.
Further, the recitation of the rupture zones as being so disposed
that individual stones form a herringhone pattern wherein a shorter
side of each stones lies adjacent a longer side of another of
the individuel stone has been removed from claim 1 and is now in-
cluded as claim 2.
New claims 12 and 27 have been rewritten in order to more clearly
define the embodiments of the invention such as, for example,
that illustrated in Figure 7 and 8.
The purpose of this amendment is to more clearly define the
scope of the invention for which the applicants seek protection.
...
The consideration before the Board is whether on not the applicant has mad.
a patentable advance in the art.
At the Heating Mr. Long argued strongly that that claims presented on
July 7, 1978 were indeed directed to patentable subject mater. Mr, von
Langsdorff demonstrated some features of his invention with some interesting
models. He also discussed at some length the problem they faced in laying
the "block clusters," and the solution or an improved sulutiom to such
problem. We are not convinced however, that the solution has anything to do
with the matter defined in the present claims.
It is interesting to note that "corresponding patents to the present application"
have issued in a number of countries, e.g. Germany, Switzerland, Britain,
United States, Sweden and Australia.
The problem facing the applicant was that large format concrete slabs tend
to break in unforeseeable places as a result of changes of temperature or
movement of the subsoil. The applicant then developed rupture lines in
netwok of cross-sectional lines of weakenings extending throuch each laying
unit in a regular and controlled pattern. The result of this is that the
units break in a predetermined manner. When the breakage of the rupture lines
has occurred the finished surface is comparable to one that has been layed
with individual stones.
The Austrian Keller patent, supra, shows the use of laying units formed with
rapture zones. This basic concept per se is known and the applicant agrees
with this.
Mr. Long argued at the Hearing that none of the art cited shows the combination
of his laying unit with the rupture zones and the recesses at the circumferences.
The recesses serve a two-fold function, i.e. to effect the laying of the
unit by accommodating a gripper, and to receive a linking stone to complete
the assembly.
It is clear that the Frei patent, see Figure 2, supra, discloses the use
of recesses in the circumference of the unit. It appears however, that these
are not used for purposes of installation, but they are used to accommodate the
linking or finishing stone.
The patent to Romoneda shows the use of a linking brick in wall structures
and this must be considered at least in an allied art assuming arguendo
that it may be considered a non-analogous art.
We have carefully read the disclosure and studied the prosecution of this
application. We also studied the affidavit which was submitted on July 7, 1978,
and signed by Mr. von Langsdorff. We note that patents were cited which
originated in six different countries. We find that the applicant has designed
his block to overcome a problem in the installation of these large units.
The problem was one of placing the large units accurately in contacting re-
lationship to one another.
One feature which was discussed at the Hearing was a lay-out called the
"herring bone pattern." In this pattern the gaps between the stones are
discontinuous. It was stated that this pattern, resulting in interlocking
stones, was very useful in practice because "it provides a much stronger and
more rigid paving." It was particuarly emphasised that "the herringbone
pattern not only extends over the individual slabs but when the linking stones
have been fitted it also extends completely over the gap between individual
slabs; the result is a completely uniform continuous arrangement of the
herringbone. There is no interruption of the herringbone at the gap between
the two parts. So the original having this feature of the recess provided in
the slabs, enables the herringbone feature to be adapted." The "interlocking"
feature of this herringbone pattern was also stressed because of the added
"strength" it provides, e.g. it is useful for the construction of "tank
areas." The tank areas refer to war tank training grounds. This feature was
also indicated as the "success in the market."
The applicant argued, and it was brought out at the Hearing, that commercial
success or the potential commercial success is significant with licence
agreements being taken out "all around the world."
When considering commercial success however, it is trite law that it
is the precise form of the invention claimed in the application or patent
which is to be considered in gauging the effect of commercial success.
(vide. Weldey and Whites Manfg Co. Ltd. v II Freeman and Letruk Ltd.(1931)
48 R.P.C. 405 at 414, and Omark Ind. (1960) v Gauger Saw Chain Co.(1964
27 Fox P.C. 1 at 22).
In the circumstances we are satisfied that an invention has been described
in the disclosure and illustrated in the drawings. There is, in our view,
sufficient ingenuity that the Commissioner ought not to refuge a patent
(of Crosley Radio Corporation v. Canadian General Electric (1936) S.C.R. 551
at 560). The specific question is then, what are the limits of the scope of
monopoly of the invention which should be defined in the claims? In view of
the above points discussed we are satisfied that the advance in the art is, inter alia,
centered around the improved results obtained from having the rupture zones
disposed in the units to form a herringbone pattern resulting in all the stones
when in use, being in an interlocking mode.
We turn to the claims. Claims 1 and 2 read:
1. A composite paving for traffic areas or other graded or inclined
ground surfaces, comprising laying units and linking stones, each
said laying unit being a relatively large unitary slab transportable
as a unit by being gripped mechanically at opposite lateral sides
thereof, said slab having preformed therein elongated rupture zones
sub-dividing it into adjoined stones and along which after being
laid it is breakable under stress into laterally interengaged
individual stones, each said laying unit having in opposed lateral
sides each extending the full height of the respective laying unit
and substantially corresponding in facial shape and size to one
said individual stone or a fraction or multiple thereof, each said unit
when laid having at least one lateral side thereof lying at and along,
and having therein at least one said recess which confronts a
respective recess in, a lateral side of at least one other said unit,
each set of said confronting recesses being filled by at least
one said linking stone inserted thereinto and which interconnects the
respective juxtaposed laying units by extending across the gap
between them, each said linking stone having the same height as
the laying unit and having substantially the facial shape and size
of one said individual stone or of a fraction or multiple thereof.
2. A composite paving as claimed in claim 1, wherein said rupture
zones are so disposed thit said individual stones form a herringbone
pattern wherein a shorter side of each stone lies adjacent part
of a longer side of another of said individual stones.
Claim 1 is clearly too broad in scole in defining what, in our view, is the
patentable advance or invention described, supra. This claim should be
refused, because there is no mention of the interlocking herringbone structure
in the combination.
Claim 2 defines the herringbone structure in combination, but requires one
limitation to more distinctly define the invention, i.e. line 2 should be
amended to read ".., said individual 'interlocking' stones...." This claim,
in our view, would then be in allowable form.
Claim 16 reads:
A composite paving as claimed in claim 15, wherein said
rupture zones are so disposed that said individual stones
form a herringbone pattern wherein a shorter side of each
stone lies adjacent part of a longer side of another of
said individual stones.
This claim is also found allowable when an amendment is made along the lines
suggested for claim 2.
None of the remaining claims define what, in our view, is the invention
described over the references cited.
To summarize, the claims refused in the Final Action were cancelled prior
to the Hearing and form no part of this decision. Claims 2 and 16 of the
present claims, when amended as suggested would, in our view, be allowable.
Claims 1, 3 to 15 and 17 to 29 are, in our view, too broad in scope. We
recommend that these claims be refused. Any claim or claims made dependent
on claims 2 or 16 would also be given favourable consideration.
J.F. Hughes
Assistant Chairman
Patent Appeal Board, Canada
I have reviewed the prosecution of this application and agree with the
recommendation of the Patent Appeal Board. Accordingly I will accept claims
2 and 16 when amended as suggested by the Board and any appropriate depend-
ent claim or claims, but I refuse to grant a patent on claims 1, 3 to 15
and 17 to 29. The applicant has six months within which to submit the
appropriate amendment, or to appeal my decision under the provisions of
Section 44 of the Patent Act.
J.A. Brown
Acting Commissioner of Patents
Dated at Hull, Quebec
this 28th. day of July, 1978
Agent for Applicant
Bell & Adams
151 Sparks St.
Ottawa, Ont.