Registered Letter
Section 42
May 23, 1980
Marks & Clerk,
Box 957, Station B,
Ottawa, Ontario.
K1P 5S7
Dear Sirs:
Re: Application - 312,735, Class 359/38
Filed - October 5, 1978
Applicant - Combustion Engineering, Inc.
Title - MOLTEN CORE CATCHER AND CONTAINMENT
HEAT REMOVAL SYSTEM
The examiner's rejection of claims C1 and C2 made under Section
45(4) of the Patent Act has been referred to me for consideration,
there having been no request for an oral hearing.
From the record it is quite clear that claims C1 and C2 are
anticipated by German Auslegeschrift 2,525,534, dated June 24,
1976, to Werner Katscher. This is the reference cited by the
applicant himself in his letter of January 3, 1980, and which
he contends render the claims invalid. Its date is more than
two years before applicant's filing date of October 5, 1978,
and is thus a statutory bar against this application under
Section 28(1) (3) of the Patent Act.
In his reply to the examiner's rejection, applicant has not
questioned the pertinency of the citation but insists on maintaining
the rejected claims unless the conflicting applicants also cancel
them. What the other party does, or whether the citation is
relevant to his application, is immaterial. Under Section 45(4)
of the Act, I am required to re-examine each of the applications
in conflict to determine the pertinency of the art submitted by
the present applicant . Upon doing so I find that this application
should be rejected under Section 42 of the Act and the applicant
is not by law entitled to be granted a patent containing claims
C1 and C2.
.../2
Commissioner Commissaire
of Patents des brevets
Ottawa- Hull Ottawa - Hull
K1A 0E1 K1A 0E1
In my view the purpose of this re-examination provided for in
Section 45(4) is to eliminate from conflict proceedings those
applications which are unpatentable because of prior art, It
provides that each application is to be given the examination
provided for under Section 37 of the Patent Act. It also
envisages instances when one party, unable to make claims owing
to prior art, supplies such art in anticipation that it might
prevent the issuance of a patent to the opposing applicant. The
section thus recognizes that one party in a conflict proceedings
may be unable to maintain claims in the conflict because of art.
The purpose of Section 45 is not to permit the use of unpatentable
applications to prevent others obtaining patents, but to determine
who is the first inventor when two otherwise allowable applications
are copending. If the applicant has disclosed the invention to
the public before the conflicting application was filed he could
(and should) use Section 63 (1) (a) against any patent granted to
that party. If on the contrary, being an early inventor, he has
delayed in filing his application until statutory bars have ar~~
against him, he should not be able to prevent a patent issuing to
others who have made a proper effort to disclose the invention to
the public. An important objective of the Patent Act is to have
application filed quickly so the public may have knowledge of
new inventions quickly.
For the above cited reasons I now reject this application. Under
Section 44 of the Act applicant has six months within which to
delete claims C1 and C2, or to appeal to the Federal Court.
Yours respectfully,
Original signed by
J. H. A. Gari‚py
Original Sign‚ par
J.H.A. Gari‚py,
Commissioner of Patents.