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