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                  COMMISSIONER'S DECISION

 

Obviousness: Hydrostatic Drive For Tractor Vehicle

 

Hydrostatic transmissions were used in crawler type vehicles where the

motion is primarily forward and reverse. The advantages of using it in a

four wheel skid steer vehicle were not that apparent. Final Action-Reversed.

 

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

Patents of the Examiner's Final Actions dated May 13, 1977 on application

224,388 (Class 180-3) and Feb. 2, 1977 on application 224,390 (Class 180-3)

The applications were filed on April 11, 1975, in the name of Clark

Equipment Company, and are entitled "Tractor Vehicle With Hydrostatic

Drive Means". The Patent Appeal Board conducted a Hearing on September 27,

1979, at which Mr. D.McKenzie, Mr. J. Bauer, the inventor, and Mr. E. Ruf,

the applicant's United States attorney, were present.

 

These applications are divisionals of application 126,196 which issued

to patent number 979,371, dated Dec. 9, 1975. There were also two other

divisional applications filed, namely 224,387 and 224,389, which have

issued as patent numbers 985,179 and 985,641, respectively.

 

The applications before us relate to a compact four-wheel tractor-type front-

end leader having pairs of driven wheels on opposite sides of the vehicle.

a hydrostatic transmission arrangement drives the wheels on one side of the

vehicle independently of the other side, and Figure 1 of the application

indicates what is involved.

 

                     (See formula 1)

 

In the Final Actions, the examiner rejected the claims as containing no

patentable subject matter in view of the following patents:

 

Canadian  747,216       Nov. 29,1966   Melroe et al

 

U.S.      2,941,609     June  21,1960   Bowers et al

 

U.S.      3,024,858     Mar.   13,1962   Davis et al

 

U.S.      3,161,245     Dec.   15,1964   Thoma

 

U.S.      3,416,623     Dec.   17,1968   Boone

 

         

          The Melroe patent, which is owned by the applicant, is the vehicle used in

          these applications except that the transmission is a clutch-driven V-belt

          arrangement.

.

          Thoma and Bowers each use a hydrostatic transmission for a track type vehicle.

          Boone shows a hydrostatic transmission for an aircraft towing vehicle. Adams

          wheeled vehicle drive has a sprocket and chain arrangement in combination

          with the V-belt drive.

 

          In the Final Action of application 224,388, the examiner stated (in part):

 

          "The primary reference is the Melroe patent which shows a

          self propelled four wheel drive vehicle having independently

          driven wheels on opposite sides of the vehicle, the space

          transversely between the pairs of wheels being greater than

          the space longitudinally between each wheel, and a pair of

          compartments containing oil reservoirs.

 

          The Bowers, Davis, Thomsa and Boone patents each show inde-

          pendent hydrostatic drive on opposite sides of a vehicle.

 

          That such a well known hydrostatic drive could be used in a

          vehicle such as applicant's or the Melroe patent vehicle

          would be obvious. Merely because it has not been used in any

          one particular vehicle does not make such use invention. When

          there is an advance in the art, such as a new type of trans-

          mission, it is not patentable subject matter to merely use

          such transmission in different types of vehicles.

 

         With respect to the sprocket and chain arrangement, this is

          shown in the Adams patent, and can be used with any type of

          transmission. The use of this particular arrangement is merely

          a matter of choice. The use of a chain tightener is also well

          known.

 

          With respect to applicant's arguments that there is a synergistic

          effect produced in the present vehicle, the examiner cannot agree.

          The increased maneuverability when cornering the vehicle is the

          result of a known characteristic of hydrostatic transmissions, i.e.

          the ratio of speeds at which the wheels on opposite sides of the

          vehicle turn being infinitely variable. The balance of power

          in which the power not required by the inside drive is transferred

          to the outside drive is also a characteristic of the hydrostatic

          transmission whether used with a tracked vehicle or a wheeled

          vehicle. The even application of power is also a result of the

          infinitely variable speeds, which, as stated above, is a known

          characteristic of the hydrostatic transmission."

 

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

 

          "The issue is very simple. Claims 1 and 2 recite a novel

          combination of a four wheeled skid steered front end loader type

          vehicle with independent variable hydrostatic drives on each

          side. While "hydrostatic" does have other meanings, it is used

          extensively in this industry (and in this application) to refer

          to this independent infinitely variable type of drive. The

          Examiner has rejected the recited combination as being obvious

          from a combination of the applicant's Canadian Parent 747,216

          to Melroe et al, which shows a four wheeled vehicle with

          clutched drives, Canadian Patent 755,913 to Adams, Jr., which

          shows a sprocket and chain arrangement, and the other four

          United States references which show track type (or two wheeled)

          vehicles with independent hydrostatic drives.

 

         

The applicant is a leader in this industry and has a very

complete knowledge of these types of vehicles. In fact, an

affidavit by the inventor, Mr. J. Bauer, is attached, setting

forth some of the advantages of the applicant's "BOBCAT"

Loader over the prior art and the considerable commercial

success thereof. While skid steered front end loader type

vehicles have been in use for quite a number of years,

they have experienced a widespread and dramatic increase in

popularity since the applicant introduced this combination.

This is because the combination has produced an unexpected

synergistic improvement in performance. Although it was

previously known to use independent hydrostatic drives on

larger crawler type vehicles, these were not commercially

successful because of operational difficulties, particularly

the considerable degree of skill required to operate them

and also their loss of power.

 

It will be apparent that it is desirable that relatively

small vehicles of this type be able to operate quickly and

often in confined areas. Therefore, it is important that

the vehicle operate smoothly and continuously, much as a

conventionally steered vehicle, and this has been impossible

with prior art skid steered vehicles. Furthermore, it is

important that a person be able to quickly learn how to

operate the vehicle. The ratio of the speeds at which the

wheels on opposite sides of the vehicle turn is infinitely

variable, thereby enabling the vehicle to be turned through

a smooth radius at any speed which provides this dramatically

increased manoeuverability. In the previous clutched vehicles

this was a difficult "stepped" motion achieved by braking.

In crawler type vehicles improved turning is accomplished

by the special relationship of the track width to the width

of the machine and other design factors. If the track

design violates the design formula for steerability, the

machine may be turned only with great difficulty and in the

extreme may simply be propelled backward or forward. This

problem becomes even more acute in four wheel drive vehicles

because the load is distributed at four different points, two

on either side of the vehicle, and the steering forces must

be applied to the ground at these points.

 

The consideration before the Board is whether or not the applicant has made

a patentable advance in the art.

 

We have considered with care the able and interesting arguments presented at

the Hearing by Mr. McKenzie, Mr. Bauer and Mr. Ruf.

 

It is the examiner's position that it is obvious to replace the V-belt clutch

driven transmission of Melroe with the hydrostatic transmission. He has

cited several references to show that the hydrostatic transmission is well

known.

 

On the other hand, the applicant argues that combining the hydrostatic

transmission with the Melroe vehicle provides an "unexpected synergistic

improvement in performance". Mr, Bauer outlined the importance of this

type of vehicle being able to operate in confined areas with precise motion

control.While the clutch driven V-belt drive of Melroe was successful,

the addition of the hydrostatic transmission has improved its performance

considerably.

 

One of the problems of the clutch-driven V-belt transmission is that of

operator fatigue caused by the manual effort required to operate the

steering levers. These levers require a force of 60 to 80 pounds, which

would overstrain an operator after a few hours of work. Another shortcoming

of the transmission used in Melroe was that life expectancy was short as

the clutch expectancy is 300 hours operation, and the V-belt drive is

approximately 1000 hours. A further drawback of the V-belt transmission

was the fact that the largest available type could only transmit 30

horsepower, which was not enough for the expected 100 horsepower units

that the company wanted to produce.

 

Mr. Bauer concerned the combination of the hydrostatic transmission with

the Melroe vehicle in 1966, but there were no commercial hydrostatic

transmissions available for their requirement in the price range that

their company allotted for this component of the vehicle. At that time,

hydrostatic transmissions were used in crawler tractors, as evidenced in

the cited art, as well as a very expensive type used by the aerospace

industry which used it to generate electricity at constant speed from a

variable source. At this point in time, there were also several other

manufacturers producing this type of vehicle with the clutch - V-belt

transmission.

 

After obtaining agreement from a manufacturer to produce a hydrostatic

transmission suitable for their type of vehicle, the applicant found it

provided numerous advantages over the Melroe transmissions. One of the

inherit features of the hydrostatic transmission is that it has a life

expectancy of 250,000 hours compared to the 1000 hours belt fife of the

prior art. Also the control levers require very little effort to

manoeuver the vehicle, so there is no problem with operator fatigue.

It was found that when a comparison of identical vehicles of this type

was made, the vehicle equipped with the hydrostatic unit could do 2 to 4

times the work of one equipped with the clutch and V-belt drive arrangement.

Further, the "stepped" type of steering action was eliminated with the

hydrostatic transmission, which reduces the wear and tear on the vehicle,

with the resultant increase in life expectancy.

 

We believe that since this is a relatively small vehicle, its ability to

operate quickly and often in confined areas is definitely improved with

the use of the hydrostatic transmission. Granted this type of transmission

was used in crawler type tractors, but their motion is primarily straight

line movement in forward or reverse, and the advantages of using this

transmission in four wheel drive skid steer vehicle of Melroe would not

be that apparent.

 

Another factor that has been argued is commercial success. According to

Mr. Bauer, in 1966, prior to the use of hydrostatic transmissions, the

company sales were 7 million dollars, and the estimated industry world-

wide sales were 15 million. Currently, all companies now are using the

hydrostatic transmission. The sales for the Clark company are expected to

be $80 million, and the industry estimate is in the order of $200 to

$250 million. The nature of the invention is not one where the consumer

is susceptible to advertising pressures to obtain sales, and we have come

to the conclusion that the major reason for the commercial success is

the hydrostatic transmission.

 

In retrospect it may well seem that it would be obvious to place the known

hydrostatic transmissions in small wheeled vehicles, and we can understand

how the examiner came to that conclusion. However the submissions made at

the Hearing, subsequent to the examiner's Final Action, have convinced us

otherwise. Where the hydrostatic transmission was used previously in tracked

vehicles, it created problems by virtue of the forces placed upon the tracks

in turning, which frequently forced the tracks off their support. The width

of the vehicle compared to its length is basic to the success of the in-

vention. Our thinking has also been influenced by the numerous advantages possessed

by the machine claimed, and its quick commercial success once it was put

on the market.

 

In view of the evidence before us, we therefore conclude that there is

"ingenuity in the invention".

 

There was some objection raised by the applicant about the requirements for

divisional filings under Canadian practice. We have reviewed the three

patents already issued to the applicant, and find that each is directed to a

separate invention, and therefore the requirement for division was proper.

We do find however that the two applications before us are directed basically to the

combination of the hydrostatic transmission with the Melroe vehicle. It

would appear that there is only one invention involved in these applications,

and a claim complying with Rule 60 would be sufficient to meet the statutory

requirements to permit both to be combined in one application.

 

In summary, we are satisfied that the applicant has made a patentable advance

in the art and we recommend that the Final Action refusing the claims be

withdrawn.

 

G. A. Asher                         S.D. Kot

Chairman                      Member

Patent Appeal Board                 Patent Appeal Board

 

I have reviewed the prosecution of this application and agree with the

recommendation of the Patent Appeal Board. Accordingly, I withdraw the

Final Action and return the application to the examiner for resumption

of prosecution.

 

J.H.A. Gariepy                      Agent for Applicant

Commissioner of Patents

     George H. Riches & Assocts.

     67 Yonge St.

                        Toronto, Ont.

 

Dated at Hull, Quebec

this 1st. day of December, 1978

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