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    COMMISSIONER'S DECISION

 

NON-STATUTORY; S.2: The elevator system in providing an arrangement to

answer a hall call behind an advanced position of an elevator, presented

patentable matter considered allowable in view of Schlumberger, as were

the claims. Rejection withdrawn.

 

    ***********

 

This decision deals with Applicant's request for review by the Commissioner

of Patents of the Final Action on application 251,205 (Class 364-15) assign-

ed to Westinghouse Electric Corporation entitled ELEVATOR SYSTEM. The

inventor is Bruce A. Powell. The Examiner in charge issued a Final Action

refusing to allow the application. A Hearing was held at which Applicant was

represented by his Patent Agents Mr. Robert A. Fox and Mr. Edward H. Oldham.

 

This application relates to an elevating system having a strategy to decrease

the time taken to answer hall calls included in the assigned path of a car

but which occur behind the travel of the car. A call classed as behind is,

for example, one made for the same direction of car travel but which occurs

behind the advanced position of a car. The Applicant explains how steps 736

and 759 of figure 6, reproduced below, bring about the strategy he claims. He

describes how his modification at 736 and his subsequent steps differ from

the copending applications referred to in this application. He says his

strategy permits a scan of all scan slot assignments for a car having a hall

call associated with it. Step 759 determines if the scan slot is behind the

advanced position of a car and, if so, it is cleared and reassigned by another

strategy to a car which can answer the demand.

 

     (see formula I)

 

       The Examiner rejects the method claims 1 to 5 for being the steps of the

       elevator strategy or algorithm to be implemented by the system processor

       or microprocessor in figures 1 and 2 and the traffic detecting circuits

       shown in figure 4, of Applicant's United States patent 4,029,175 to Winkler

       which corresponds to Applicant's Canadian application 251,155, hereinafter

       referred to as Winkler. He refuses claims 6 to 11 for being "...the

       instruction means or computer program means executed by the same known

       microprocessor and traffic detecting circuit." He rejects all the claims

       for being solely the strategies "...carried out by the known microprocessor

       and traffic detecting circuits disclosed and claimed in the United States

       patent number 4,029,175 which corresponds to the Canadian application

       251,155 of same assignee...". In view of his reasons for rejecting the

       claims, he concludes there is no patentable subject matter present and

       refuses the application.

 

       In response Applicant refers to his argument is his letter of June 21,

       1979 wherein he points out how his strategy provides better service for

       hall calls received behind as elevator car. He argues, in part, as follows:

 

 ...

 

       Instead of automatically allowing landing service directions

       which have a hall call associated therewith to remain assign-

       ed to the car to which it was assigned during an earlier

       processing cycle, each new processing cycle examines each

       landing service direction. If a landing service direction

       is found to have a hall call associated therewith, it is

       immediately determined if the location of the hall call is

       "behind the car." If it is "behind the car", the associated

       landing service direction is cleared and then reassigned during

       the assignment sequence of the processing cycle.

 

...

 

       In that letter, Applicant says his claims are directed to as elevator

       strategy and not to a computer programmed in a particular manner, nor

       to a generalised program that has application to computers. He argues

       elevator strategies incorporated into a system have been recognized as

       patentable inventions.

 

In his letter of November 20, 1979 Applicant presented claim 1 of his

Canadian application 251,155, now Canadian Patent 1,079,425, and claim 1

of this application and asked how the Examiner could consider those claims

to be directed to the same thing. He draws attention to the fact that

both his applications were filed in Canada on the same day.

 

The issue before the Board is whether or not the application is directed

to patentable subject matter in view of Section 2 of the Patent Act, and

whether it is claiming solely the strategies carried out by the elevator

system of United States patent 4,029,175. Claim 1 reads:

 

A method of controlling a plurality of elevator cars to

provide service for a plurality of floors of a building,

comprising the steps of:

 

providing means for registering up and down hall

calls from at least certain of the floors of the building,

 

assigning the various up and down service directions

of the floors by dividing them among all of the in-service

elevator cars according to a predetermined strategy,

 

periodically clearing those assigned up and down ser-

vice directions of the floors which do not have a registered

hall call associated therewith, and also an assigned up or

down service direction of a floor which has a hall call

associated therewith which is located behind the advanced

position of the elevator car it is assigned to,

 

and reassigning the up and down service directions

from the floors cleared in the clearing step, by dividing

them among all of the in-service elevator cars according

to the predetermined strategy.

 

At the Hearing the Agents discussed the purpose and environment of Applic-

ant's strategy recited in claim 1. They described how it reduces the

longer processing time in other systems because it determines those calls

which were made behind the direction of an elevator car and then reassigns

them to another car for quicker service. They argued Applicant's claims

define this feature of reassigning a hall call located behind the advanced

position of the elevator car to which it is assigned.

 

In dealing with the issue of whether or not the claims are acceptable under

Section 2, we find guidance in the decision in Schlumberger Canada Ltd. v

The Commissioner of Patents 56 CPR 2d 204, 1981. Pratte, J. had the

following comments:

 

In order to determine whether the application discloses t

patentable invention, it'is first necessary to determine

what, according to the application, has been discovered.

and

I am of opinion that the fact that s computer is or should

be used to implement discovery does not change the nature of

that discovery

 

We will look first to the disclosure to determine what constitutes the

subject matter of the claims. We learn that an elevator system is disclosed

capable of performing several kinds of service functions, for example,

dividing service directions among the elevator cars, assigning scan slots,

clearing certain assignments to cars and reassigning cleared assignments,

detecting special traffic conditions, and providing special floor instruct-

ions. Figure 6 shows one of these functions; an arrangement of processing

steps to remove scan slots having a hall call behind the advanced position

of the car to which they are assigned and to reassign such slots. The

description for that figure relates to a certain operation for detecting

whether a scan slot is behind a car. In that arrangement if step 736 finds

the number of scan slots having hall calls associated therewith is not

equal to or greater than the building hall calls per car average, the process

advances directly to 750. Applicant then loads a scan count 751 and uses

logic steps 753, 755 to initialize scans 1 to 3. Two of these scans proceed

to step 756 for scan slot address. The other passes to 754 to determine

if the car is at a terminal floor, and if so the program moves to step

770 and proceeds to reassignment via exit 748. Otherwise, the scan moves

with the other two for assignment detection at 758. When step 758 finds the

scan slot is assigned to the particular car, step 759 checks if the scan

slot is behind the car's advanced floor position, and if so, the informa-

tion goes directly to step 764. Here, the assignment is cleared and the

information is processed through steps 766, 770, 772 and into step 740

for exit through 748 and assignment by another strategy which takes care of

the hall call. We are persuaded that more than a generalized program for

application to computers has been presented. Applicant says his step 759

improves the elevator service because it reduces the waiting time for a

call to be answered. We agree with Applicant that as elevator strategy has

been disclosed and that more than a computer program has been set forth. We

are satisfied an elevator system is the "what" that has been discovered and

that it incorporates a strategy to produce improvement in an elevator

operation. Having found the subject matter to be an improved elevator

system, we consider the presence of a microprocessor as part of it should

not remove the system from a patentable field. In our opinion the rejection

of the application for not being directed to patentable subject matter

should be withdrawn.

 

We turn to the claims which were rejected by the Examiner for setting forth

"algorithm, program and instruction means." We find that all the claims

include the feature that a hall call behind the advanced position of the

elevator car is cleared and reassigned. In our view this agrees with the

disclosed elevator strategy and the claims should be considered acceptable

under Section 2.

 

We note the steps of Applicant's described strategy as shown in figure 6 of

this application correspond identically to the strategy disclosed in Winkler

and shown by Winkler's figure 6. We do not, however, hold the view that

Winkler's copending application should serve as illustrating what is known,

in the patent sense of Section 28 of the Patent Act, in order to reject this

application. Furthermore, under the Patent Act it is permissible to file

one application disclosing and claiming several inventions, and thereafter

file divisional applications each claiming a different invention from the

parent application (and each other) and eventually obtain a patent for each

invention, provided they all conform with all the conditions of the Patent Act.

We see no difference in effect between the above provisions, and the procedure

Applicant has followed in attempting to patent different inventions.

 

In the situation before us Westinghouse Electric Corporation filed two appli-

cations on the same day. The first (Winkler) disclosed several inventions

and claimed one of them; the second (this Applicant) claims and discloses

one of the inventions not claimed in the first. We do not find in Winkler's

claims a recitation of the arrangement to scan behind the advanced position

of a car and to clear and reassign any hall call so found behind the car.

We see no reason therefore to reject the claims in this application as being

known merely because the Westinghouse Electric Corporation, on the same day,

filed two applications by different inventors claiming different inventions,

even though both applications disclose the two different inventions.

 

In summary, we are not able to support the rejection of this application

in view of Winkler's copending application filed on the same day as this

application, nor in view of the Winkler United States patent which issued

after Applicant's f cling date. It may be in this case the Examiner was attempt-

ing to show that this application defines no inventive matter different from

the copending application. In any event, the Board considers a different

elevator strategy is being claimed in this application from that in Winkler.

 

We recommend that the rejection of the application and claims for being

directed to non-patentable subject matter be withdrawn and the application

returned for normal prosecution.

 

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

Chairman                Assistant Chairman      Member

Patent Appeal Board

 

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

Accordingly, I withdraw the Final Action and I remand the application to the

Examiner for prosecution consistent with the recommendation.

 

                              Agent for Applicant

J.H A. Gari‚py

Commissioner of Patents                   McConnell & Fox

                              Box 510

                              Hamilton, Ont.

Dated at Hull, Quebec

this 6th. day of May, 1985

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