COMMISSIONER"S DECISION
OBVIOUSNESS: AUTOMATIC FISH DUMPER
Mechanical means for lifting fish out of a ships hold is shown in the cited
art. While the inventor has features which overcome the disadvantages of
the prior art the description relating to these features is vague. Amendment
to the disclosure governed by Rules 48 to 57 is suggested.
Final Action: Rejection of the application is withdrawn.
**********************
Patent application 353,480 (Class 201-30), has filed on June 11, 1980
for an invention entitled AUTOMATIC TUB DUMPER. The inventor is Edward
B. Newell. The Examiner in charge of the application took a Final Act-
ion on June 25, 1982 refusing to allow it to proceed to patent. In
reviewing the rejection, the Patent Appeal Board held a Hearing on
March 14, 1984 at which the Applicant was represented by Mr. R. Broderick,
the Agent. Also present were Mr. B. Newell, the inventor and Mr. W.
McDonald, the Manufacturer.
The subject matter of this application relates to mechanical means for
lifting fish out of a ship's hold. It consists of a tub like receptacle
lifted by a winch line through an open ended container which is pivotally
mounted to discharge the contents onto a trough. Drawings illustrating the
application are as follows:
(See formula 1)
Tub 13 is pulled by the winch cable via pulleys 2 and 9. When the wedge
shaped handle 12 reaches the pully 9 the container 7 pivots about the pillar
blocks 4 to tip the container and transfer the tub contents on to the sloping
trough 3.
In the Final Action the Examiner rejected the application in view of the
following:
Canadian Patent 40,444 Sept. 22, 1892 Abbott
Abbott describes apparatus for loading and unloading vessels. Figure 3 is
as follows:
(See formula 1)
Container G has a handle g which is attached to a winch cable E. When the
winch is activated the top of the container rim contacts the stop members I
of the guard or tippler H and then rotation about pivot h occurs to dump the
contents down shoot C.
In the Final Action the Examiner stated (in part):
...
It is reiterated that Abbott clearly describes and shows systems for
lifting material from a boat and for discharging the material into
trough at an elevated location, substantially as defined by applicant.
The system shown in Figure 3 of the cited patent includes a
sloped trough, a vertically disposed circular container, open at
both ends, pivotally mounted at the upper end of the trough, a
plurality of flared guide elements spaced around the periphery
of the lower open end of the container and secured thereto, a
circular tub having an inverted V-shaped handle disposed below
the container, a lifting line secured to the handle, said line
extending upwardly through the open container, passing around
guide pulleys located at both upper and lower ends of the trough
and thence to a winch.
To operate the Abbott system described above, the tub is first
lowered to a location where the tub is permitted to scoop up a
load of material . The tub is then lifted by the winch line and
guided by the flared elements into the lower end portion of the
open container. The container is adapted to be pivoted by the
upward motion of the tub, causing both container and tub to tilt
and thereby discharge the tub load of material into the upper end
of the trough substantially as proposed by applicant.
In applicant's letter of December 23, 1981 it is argued that the
present device includes a container having a flare extending
entirely about the periphery of the open lower end of container,
rather than spaced guides as shown by Abbott. It is held, however,
that the flared lip utilized by applicant is a mechanical
equivalent of the peripherally-spaced flared guide elements
shown by Abbott , and may not be relied upon for patentable dis-
tinction.
Applicant has also argued that Abbott's tub does not telescope
entirely within the open container as in the present device. How-
ever, a careful examination and comparison of the operation of
Abbott's device and applicant's device reveals no significant
advantage or improvement in having the tub telescope almost entirely
within the container, rather than only a short distance within the
lower portion of the container, before the container is caused to
pivot, thereby tilting the tub for load dumping. The mode of
operation and the end result are the same in both cases.
Other structural differences inherent in applicant's system and
as defined in claims 1-4 are deemed to be matters of design expediency,
and not those arising through inventive ingenuity. It is also pointed
out that much of the descriptive matter set forth in claim 7 is not
fully supported by the disclosure. Examples of elements and descript-
ive terminology deemed not to be fully supported by the disclosure
are: "a semi-circular trough closed at one end", "two vertical
rectangular bars", "a loop to hold a pulley", "a rectangular bar
section projecting from two bars attached to the container", "a
wedge-shaped pulley", "two perforated blocks which act as tripping
devices", and "horizontal bars provided with perforations so that
each may be bolted to a stationary support in alignment with each other".
...
In response to the Final Action the Applicant stated (in part):
...
2, It is argued that the following Patentable improvements and
differences between the Abbott Patent and the present device exist,
namely:
(a) Present Applicant's device including, as it does,
a container having a flare, extending entirely about the
periphery of the open lower end of the container, is com-
pletely different from the spaced guides as shown by Abbot
on his container and that the flare is, indeed, a new and
useful Patentable improvement over the Abbott Patent, in
that the spaced guides shown in the Abbott container lend
themselves to being caught, bent or broken off by the tub,
as it enters the container in operation, thus leading to
error and malfunction of the tub dumping mechanism and to
delays in the whole operation until repairs are made.
Present Applicant's flared container eliminates the above
difficulties and thus increases the efficiency of the whole
operation and therefore, it should be concluded to be an
important Patentable distinction and improvement.
(b) The flared periphery described above is unique,
in that it completes two functions namely, the first
function is that the flared periphery stops the tub and
the second function is that the flared periphery turns
the tub to its proper position for dumping. In the
Abbott Patent, stops are required to stop the tub and
a cross-bar is required to turn the tub to the required
position for dumping. The said flared periphery on
present Applicant's device thus eliminates the stops
and the cross-bar disclosed by Abbott and is a further
improvement which results in a simplification of the
device and eliminates the stops and cross-bar as dis-
closed by Abbott .
(c) The Abbott tub does not telescope entirely
within the open container, whereas present Applicant's
tub does so. It is argued that the fact that present
Applicant's tub does so telescope as described, in-
creases the efficiency and the operation of the whole
device, in that in the Abbott device, the contents of
the tub is discharged into the container itself, which
could result in a jamming of its contents between the
tub and the container, which would lead to further
delays in the whole operation of the invention, because
the container and the tub would have to be taken apart
and the jammed material removed, resulting in further
delays and expenses to the user. Present Applicant's
invention thus provides a further advantage and im-
provement over Abbott.
(d) It is further argued that, while there may
be some similarities between the Abbott device and the
present Applicant's device and, while the end operation
of both devices may be designed to achieve, more or
less, the same objectives, present Applicant's device
is much more efficient, easier to operate, eliminates
the repairs and delays and the manual labour involved
in same inherent to Abbott's device, and therefore
must be considered to be an improvement over the prior
art cited.
(e) The obvious structural differences between
present Applicant's device and the Abbott device are
not merely matters of design expediency, but are in
fact the result of present Applicant's inventive
ingenuity and that they are therefore novel Patentable
differences and improvements over all the prior art
cited.
(f) It is pointed out that the descriptive term-
inology which Examiner considers as not being fully
supported by the disclosure, is quite clear and could
not be mistaken to mean anything other than the words
themselves indicate, but that in any event, these
objections are relatively minor ones, which may be
readily remedied by amendment.
...
The consideration before the Board is whether or not the application is directed
to a patentable advance over the art of record.
At the Hearing Mr. Newell outlined the problems of handling fish and his solution
of mechanically lifting them as set out in this application. Mr. McDonald spoke
about the manufacture of the device and Mr. Broderick presented arguments with
respect to patentability particularly pointing out the commercial success of the
Applicant's arrangement.
In the Final Action the Examiner rejected the application for not "presenting any
patentable subject matter in view of the teachings" of the Abbott patent . He
indicated that Abbott describes and shows systems for lifting material from a
boat and for discharging it into a trough. Further he stated that the reference
shows a pivotally mounted vertically disposed container, open at both ends,
having a plurality of flared guide elements around the lower end of the periphery,
a circular tub having an inverted V-shaped handle disposed below the container
and a lifting line secured to the container. Accordingly the Examiner concluded
that the flared lip utilized by the Applicant is a mechanical equivalent of the
peripherally spaced flared guide elements shown by Abbott.
It is the Applicant's position that his use of a flare extending entirely around
the periphery of the container represents a patentable improvement over the four
90ø spaced flared guide elements shown by Abbott. Mr. Newell pointed out that
it practice there is considerable lateral bucket-sway due to wind or ocean con-
ditions and maintained that the limited guidance offered by the four narrow flared
tabs of Abbott would not be practical for the high winch speeds utilized by his
arrangement. We agree that the use of a flare represents a more positive means
for directing the tub into the container than is the use of four tab members
of Abbott and that it would be less likely to snag the bucket under the
practical conditions described by Mr. Newell.
Another issue raised in the Final Action was that there was no significant
advantage or improvement in having the tub telescope almost entirely within the
container as contemplated by the Applicant when compared to the short distance
described by Abbott before the container pivots for load dumping. At the Hear-
ing Mr. Newell explained that because of the speed of his cable the tub is
"throw up" into the casing to cause simultaneous pivot movement due to the
centrifugal force involved, thereby dumping the tub contents. He stressed
that the short telescopic distance shown by Abbott could only operate at a very
slow winch speed where no centrifugal force is present and he reasoned that
if Abbott were to utilize a fast cable speed then the centrifugal force would
tend to "separate" the tub from the container. We are persuaded that the fully
telescoping feature is essential to attain consistent and reliable operation
as contemplated by the Applicant.
Another issue discussed at the Hearing was the manner in which the tub is turned
to the dump position. This application states that the mouth piece turns the
tub in proper dump position. We should point out in this regard that the
Applicants' unnumbered figure showing the tub in dump position does not show
the tub in the correct turned manner as envisaged by Mr. Newell and described
by him to us at the Hearing. Abbott also shows a bar for turning the tub before
dumping which indicates that this idea is not new.
Mr. Newell pointed out that in the Abbott arrangement the tub would jam the
container when the handle was in the position shown in phantom in the lower
right hand corner of figure 3 because it would tilt the tub rather than turn
it when in contact with the bar k. This would also cause the tub to jam in the
guide. While it is difficult to determine how often the Abbott handle would
contact the bar at 90ø we must agree with Mr. Newell that, if that situation
occurred, then jamming would result. We also agree with Mr. Newell that his
arrangement apparently overcomes this drawback in Abbott.
From what we learned at the Hearing the circular flare on the container bottom,
the telescoping of the tub within the container and the location of means to
turn the tub are features which enable the Applicant's arrangement to operate
at a much higher winch speed with no jamming than is possible with the Abbott
device. He also learned at the Hearing that damage to the cargo, a serious
problem in fish handling, is considerably reduced when compared with manual
unloading systems. After listening to the explanations at the Hearing we are
satisfied that Mr. Newell has overcome considerable disadvantages in the prior
art with his features. We conclude that the continuous flare and fully teles-
copic action are features that represent an improvement over the cited Abbott
patent when they are considered in combination with the tub-turning device.
At the Hearing there was considerable and we think useful discussion of the
disclosure with respect to practical details concerning turning of the tub.
Mr. McDonald also stated that the placement of the winch pulleys and support
arm length are critical to pivot the tub for discharge at the winch speed
envisaged by the Applicant.
We must point out that when the Final Action was written the Examiner was
limited to the information before him in the specification and we agree with his
issuing that action on the basis of the information in the specification. It is
only after the very informative Hearing that brought to light many details of
the invention that we now can conclude that the Applicant has in fact made a
patentable advance over the Abbott reference. However the patentable advance
is not at present described in the application. The Board considers that if
the combination of features; the circular flare, the telescoping into the
container and the location of the turning means above the container can be properly
incorporated into the specification, the application should be acceptable.
The extent to which these details can now be included in the disclosure is
a question of examination. We wish to point out that Rules 48 to 57 of the
Patent Rules govern amendments that can be permitted in an application.
Having concluded that subject matter has been invented over the art of record
we now turn to the claims and the second objection in the Final Action that
"Claim 1 is not fully supported by the disclosure." The Examiner pointed out
differences in descriptive terminology used in the claim and the disclosure and
some elements in the claims that did not appear to be supported by the disclos-
ure. These include reference to a "semi-circular trough closed at one end"
which is shown open-ended in the drawing. This claim also refers to "two vertical
rectangular bars", "a rectangular bar section projecting from two bars attached
to the container", and "a wedge-shaped pulley". We are unable to find any
description relating to the rectangular bars or wedge shaped pulley in the
disclosure or drawings. We must emphasize however since claim 1 is as originally
filed it forms part of the original specification, therefore any features lacking
support can be incorporated in the disclosure by amendment under Rule 52 of the
Rules.
In summary, we recommend that the rejection of the application be withdrawn
and that the application be returned to the Examiner for further prosecution
in light of the additional in formation supplied at the Hearing.
A. McDonough S.D.Kot
Chairman Member
Patent Appeal Board
I concur with the findings and the recommendations of the Patent Appeal Board.
Accordingly, I withdraw the Final Action, and I am remanding the application to
the Examiner for prosecution consistent with the recommendation.
Agent for Applicant
J.H.A. Gari‚py
Commissioner of Patents Ralph J. Broderick,
50 Princess St.
Saint John, N.B.
E2L 1K2
Dated at Hull, Quebec
this 17th. day of April, 1984