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            COMMISSIONER'S DECISION

 

Amendments to drawings and claims to define the interaction of the step and

riser elements of the access device were accepted. Rejection modified.

 

                  ********

 

This decision deals with Applicant's request that the Commissioner of

Patents review the Examiner's Final Action on application 298,391 (Class

105-228). The application was filed March 7, 1978, and is entitled

MULTI-LEVEL ACCESS DEVICES. The inventor is Geoffrey R. Tregoning. The

Examiner in charge issued a Final Action on May 8, 1981, refusing the

application.

 

The application relates to an access device, formed of three interconnected

parts, for use on a railway passenger car. Figure 2, reproduced below,

illustrates the arrangement. A first part 1 has a hinge at one side which

is attached to one side of second part 2. At its opposite edge part 2 is

hinged to part 3. The opposite edge of part 3 is hinged at 3c to part 4.

Guide means 32 are provided for guiding part 3 between a top position in

which the three parts form a platform, to a lower position in which parts 3

and 2 form respectively a step and a rise. The guide means supports part 3

at the lower position. An over-center two-piece strut means 10 supports

and actuates parts 2 and 3 at their hinge point 3b. A pivoted pneumatic

cylinder 15 actuates the strut means using a connecting arm 12. Part 2 has

an arm 17 extending therefrom which is connected to linkage 18 to move

part 4 between the two positions.

 

(see formula I)

 

       The Examiner rejected all the claims as failing to recite sufficient elements

       to perform the operation described in the disclosure and shown in the draw-

       ings. In the Final Action the Examiner stated (in part):

 

...

 

       The refusal of claims 1 to 4 is maintained; furthermore

       claim 5 is also refused because it does not overcome the

       objection to claim 4 upon which it is made dependent.

 

       Claims 1 to 5 as presented do not enclose sufficient

       structural members and the cooperative interrelationship

       between such members, such that the structure claimed

       can perform its task in accordance with the teaching of

       the disclosure and drawings of the application.

 

       The disclosure teaches an access stairway and platform

       device for entrance to a railway passenger car. The said

       device in order to be able to perform its required task

       must include elements 2, 3, 4 and 6 as well as linkage inter-

       connecting the said elements.

 

       As claimed in claims 1 to 5, only portions of the device are

       included, and such portions by themselves would not provide

       a means for a passenger to board a passenger vehicle.

 

       Claims 1 to 5 are rejected under Section 2 of the Patent Act

       as being incomplete and failing to recite sufficient elements

       for proper operation of the invention.

 

       Applicant's argument that what he is claiming is a specific

       preferred embodiment, does not overcome the rejection of the

       claims as noted above.

 

       The claims are directed to an access device, which according

       to the disclosure permits entering a railway passenger car.

       The said access device, in order to perform its task in accord-

       ance with the teaching of the disclosure and drawings, must in-

       clude sufficient structural members and the cooperative

       interrelationship between such members, so that a person can

       enter the passenger car from a railside platform; the rejected

       claims fail to do this.

 

       The claims teach an incomplete portion of the device disclosed.

       The elements claimed are parts 1, 2 and 3, hinged together and

       are over the center strut #10.

 

       An examination of the drawings, shows that if parts 4, 17, 18, 19

       and 20 are omitted, then the third part 3 and second part 2

       would not move in to place in an orderly manner such that part 3

       will be a step and part 2 will be a riser.

 

       The bracing action of elements 17, 16, 19 and 20 is required to

       control the movement of hinged elements 2, 3 and 4 in that

       element 10 will be able to raise or lower the said step elements

       2, 3 and 4.

 

       The partial matter claimed by the refused claims will not and

       cannot form a step access to the passenger car. The mere utiliza-

       tion of a mechanical movement of elements 2 and 3, is not only

       incomplete insofar as movement is concerned, but also will not

       provide the access to a passenger car.

 

       In view of the above discussion claims 1 to 5 are refused because

       they do not include sufficient structural elements such that the

       device claimed can perform a useful task.

 

...

 

       In presenting his case for allowance of the claims, Applicant argued (in part):

 

...

 

       The first substantial objection in the Final Action is a reiteration

       of the Examiner's belief that elements 2, 3, 4 and 6, as well as

       unspecified interconnecting linkage, are essential. Applicants

       can only repeat their previous assertion that the elements 4 and 6

       are not essential, nor is there any basis in the specification for

       suggesting that they are. Furthermore, there is no linkage inter-

       connecting with element 6 other than the supporting structure of

       the vehicle. The step 6 may be omitted altogether. Furthermore,

       the specification quite clearly describes the actuator means

       (23, 24, 26 and 27) for raising and lowering the step as independ-

       ent in form and operation from the actuator means (10, 11, 12, 13,

       14, 15 and 16) for moving parts 2, 3 and 4. The drawings show that the

       strut 10 and the step 6 are pivoted on the same axis at 9, but

       consideration of the drawings in conjunction with the description

       will show that there is no interconnecting linkage. In fact the

       strut 10 and step 6 share the same pivotal axis merely to save

       weight and cost.

 

       The second last paragraph in the first page of the Official Action

       is unclear, since no such argument has been made by applicants.

 

       The last paragraph in page 1 of the Final Action suggests that

       the Examiner does not understand the function of the claims in a

       patent. It is common ground that the claims must set forth an

       operable structure. The Examiner has failed to show that the

       present claims do not meet this requirement, but rather concentrates

       his arguments on a requirement that applicant's main claim should

       include virtually all of the structure described in relation to

       a specific preferred embodiment of the invention. It is submitted

       that the Examiner's approach to this question is inherently unsound.

 

       The first three paragraphs in page 2 of the Final Action cause

       the applicants to wonder whether the Examiner indeed understands

       how the described embodiment operates, and whether he fully appreciates

       the meaning of the term "over-centre elbow strut". The language

       of the Final Action states (page 2, third paragraph):

"The bracing action of elements 17, 18, 19 and 20

is required to control the movement of hinged

elements 2, 3 and 4 ... ".

 

This is not correct. The strut 10 will move the hinged elements

2 and 3 to form a riser and step respectively without the pre-

sence of elements 4 and elements 17, 18, 19 and 20. The action

of these latter elements is described at page 6 lines 14 to 20

and page 7 lines 13 to 23 of the specification. Applicants have

reviewed this point on a working model, and confirm that the

elements merely control the angle of the part 4 relative to

parts 2 and 3 so that it also fortes a riser.

 

In deployment of parts 2, 3 and 4 to form a step the hinge 3b is

pulled, in the plane of the drawings, downwards and leftwards.

Clearly, as the drawings show, hinge 3b swings about an arc centred

on 3a having a radius determined by the length of part 2. To form

a tread, part 3 must be substantially horizontal so that the lower

end point of guide means 32 is critical since it supports 3c in

the deployed condition. To form a riser part 4 would adopt the

correct position if merely left to hang freely under the influence

of gravity. The function of elements 17, 18, 19 and 20 is to

produce a pronounced early "kick up" of the leading edge of part 14

to permit its engagement with the hooked sections 33 (Figure 2).

Thus they have no substantive effect on the operation of the basic

invention.

 

For the foregoing reasons it is submitted that the Examiner's

objections to claims 1 to 5 are without substance and should be

overruled.

 

...

 

The issue before the Board is whether or not the claims contain sufficient elements

to define the operation of the invention. Claim 1 reads:

 

An access device having a platform formed of three parts, an edge

of a first of said parts being hinged at first hinge means to

an edge of a second of said parts, the opposite edge of which is

hinged at a second hinge means to an edge of a third of said

parts, guide means being provided for guiding the third part be-

tween a position in which the three parts form a platform at

one level and a position in which the third and second parts

form respectively a step and a riser between a lower level and

said one level, means for actuating said second and third parts

between said levels, and over-centre elbow strut means for

supporting the second hinge means at the one level.

 

During review of the application and Applicant's arguments it became apparent

that the model that Applicant referred to was different in some aspects than

the arrangement of the access device shown in figure 3. We contacted the

Agent who informed us that in the model, the guide means was closed at its

lower end to retain the hinge means 3c connected to the step part 3. During

the discussion it was appreciated that in figure 3 of the drawings, which

shows the access device in its step/riser mode, the drawing contained no end

closing depiction for guide means 32. In figure 2 however, such a closure

was shown, and support for the closure was found to be present in the dis-

closure.

 

By amendments dated March 4, 1983 and March 15, 1983, Applicant submitted

respectively, drawing corrections to figures 1 and 3, and an amended claim 1

which reads:

 

An access device having a platform formed of three parts,

an edge of a first of said parts being hinged at first hinge

means to an edge of a second of said parts, the opposite

edge of which is hinged at a second hinge means to an edge

of a third of said parts, guide means being provided for

guiding the third part between a position in which the three

parts form a platform at one level and a position in which

the third and second parts form respectively a step and a

riser between a lower level and said one level, means for

actuating said second and third parts between said levels,

and over-centre elbow strut means for supporting the second

hinge means at the one level, and means to support the third

part at said lower level.

 

We are satisfied that the above amendments to the drawings and to the claims

are acceptable in view of the disclosure in the application.

 

We recommend that the amendments be accepted as overcoming the rejection

made by the Examiner.

 

A. McDonough            M.G. Brown              S.D. Kot

Chairman          Member                  Member

Patent Appeal Board

 

I concur with the findings and the recommendation of the Patent Appeal

Board. Accordingly, I am remanding the application to the Examiner to

continue prosecution consistent with the recommendation.

 

J.H.A. Gari‚py

Commissioner of Patents

 

Dated at Hull, Quebec

 

this 17th. day of May, 1983

 

Agent for Applicant

 

Fetherstonhaugh & Co.

Box 2999, Stn. D,

Ottawa, Ont.

K1P 5Y6

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