IN THE CANADIAN PATENT OFFICE
DECISION OF THE COMMISSIONER OF PATENTS
Patent application 374,024 having been rejected under Rule 47(2) of the
Patent Regulations, the Applicant asked that the Final Action of the
Examiner be reviewed. The rejection has consequently been considered by
the Patent Appeal Board and by the Commissioner of Patents. The findings
of the Board and the ruling of the Commissioner are as follows:
Agent for Applicant
Johnson, Douglas S., Q.C.
133 Richmond Street West
Toronto, Ontario
M5H 2L7
COMMISSIONER'S DECISION
Applicant uses a mechanical connection of the brace arrangement to the legs of the shoring frame which
allows for repairs to be made in the field and the use of different brace and leg materials. Rejection
of some of the claims was made in view of six cited patents. Applicant submitted amended claims after
the Hearing. Final Action: Modified
Patent application 374,024 was filed on March 27, 1981 for an invention
entitled SHORING AND SCAFFOLDING FRAMES OF MECHANICALLY CONNECTED
COMPONENTS. The inventor is Ronald J. Johnston, assignor to Aluma Systems
Incorporated. The Examiner in charge of the application took a Final
Action on August 3, 1984 refusing to allow it to proceed to patent. A
Hearing was held on June 18, 1986 at which the applicant was represented by
his patent agent Mr. W. Hall and the inventor Mr. Johnston.
The subject matter of the application relates to frames and legs which may
be used in shoring frames. Figures 1, and 2 shown below are illustrative
of the application.
<IMGS>
Assembly 10 consists of two sets of stacked frames 12 and 14. Frame legs
16 are connected to each other by diagonal braces 70, horizontal braces 68
and cross braces 120. Connecting bracket 42 is bolted to leg 16 with stubs
64 serving to retain diagonal brace 70 and horizontal brace 68 by means of
a bolt passing through holes 66, 98 and 94.
In the Final Action the Examiner refused claims 1 to 39 and 50 to 54 in
view of art and indicated that claims 40 to 49 were allowable. The art
applied was the following:
United States Patents
4,136,785 January 30, 1979 McDevitt
3,867,045 February 18, 1975 Beals
3,684,058 August 15, 1972 Brown
2,294,240 August 25, 1942 Pollman
792,366 June 13, 1905 Taylor
French Patent
1,123,790 September 27, 1956 Taillefer.
McDevitt's patent is for a portable rack construction for holds of cargo
ships. Figure 2 shown here is representative of the arrangement.
<IMG>
Horizontally spaced base units 10 each contain a square upstanding ferrule
16 to receive and support legs 20. Braces 30, and 62 support beam members
40 while "X" spreaders 56 hold beams 50 to form the cargo rack.
Beals shows a U-shaped tube-connecting clip for assembly of square metal
tubing into framework. Figure 2 of the patent is shown here.
<IMG>
U-shaped clip 13 has a pair of legs 16, 17 to fit over rectangular tube 11
and are retained by sheet metal screw 21. Rectangular tube 12 is locked to
clip 13 by detents 14 and 14a.
Pollman relates to scaffolding which has clamps to secure the braces
between the uprights. Figure 1 shown below is illustrative of this patent.
<IMG>
Brace members 12, 28 and cross members 23 are attached to the uprights 5 by
bolts 19 through clamp member 16.
Brown describes a scaffold arrangement having a U-shaped bracket
arrangement to attach the cross braces to the uprights. Taillefer uses
extendable braces for his scaffold and has provision for attachment to the
wall.
Taylor shows a bedstead construction in which the frame hooks on the
upright corner by engaging a pin.
In the Final Action the Examiner stated (in part):
The rejected claims are directed to a frame for supporting
vertical loads. The frame consists of a pair of spaced
aluminum tubular legs joined by a brace and means for
mechanically connecting the brace to the legs. The connector
means straddles the legs and is connected to the walls of the
legs. Figures 2 and 3 provide an excellent view of the
device claimed.
The examiner has rejected certain claims in view of the prior
art. It is conceded that these prior art patents are
concerned with scaffolding as applicant argues. However, it
is not seen that "a shoring frame" that has the same
structure is patentable over that art. The only thing that
can be used to distinguish a shoring frame over a scaffold is
its greater strength and size of elements. It is totally
within the skill of a tradesmen to increase the strength of a
structural member to enable it to be used to support higher
loads. No inventive ingenuity is required to do the
strengthening and no new and unexpected result was produced.
The particular joint in question is time honored. One of the
cited patents is dated in 1905. Granted applicant has a
slightly different cross-section for his leg supports, but
this cannot be used to add patentability to the connection.
It is noted that claim 30, the broadest claim, does not even
include as much detail of the connection as claim 1 and thus
is clearly met by the art. This claim merely sets forth a
mechanical fastening that connects the brace to the legs.
Applicant's arguments in his letter of May 18, 1984 are not
at all persuasive. The primary argument regarding "Shoring"
versus "Scaffolding" has already been dealt with. The other
arguments regarding choice of material, aluminum as opposed
to steel and rigidity are moot ones. The substitution of
aluminum for steel, is not patentable and rigidity is simply
a matter of degree and is related to strength and size of the
elements. This argument has already been refuted above.
In response to the Final Action the applicant stated (in part):
The Examiner is of the opinion that the only features or
elements that distinguish a Shoring Frame from a Scaffolding
Frame is its greater strength and size of elements, however,
the applicant submits that this position is without support.
Scaffolding is primarily used to provide access for workmen
within or to the exterior of an existing structure, whereas
shoring is designed to provide a support surface for forming
of a structure. Shoring is subject to different design
requirements and individual shoring frames are paired and
interconnected with a further frame to form a separate and
distinct tower-like structure to which additional frames are
stacked as shown in Figure 1. The hypothetical tradesman
that the Examiner refers to would be knowledgable in the
Shoring Frame art and would follow the accepted practice that
Scaffolding Systems are not acceptable for Shoring Frame
applications. There is not even a suggestion, let alone a
teaching in any of the Patents relied on by the Examiner that
the scaffolding system taught therein could be used for any
other application other than scaffolding and there is
certainly no teaching that they could be used for the much
more demanding requirements of a shoring system.
Therefore, the references relied on by the Examiner do not
even "point to the claimed structure" which test the Supreme
Court of Canada in Farbwerke Hoechst AG v. Halocarbon
(Ontario) Ltd. stated put the requirement for inventive
ingenuity much too high.
The only teaching of a mechanically secured shoring frame, is
found in the present application and it is only with
hindsight and the benefit of the present disclosure that one
would even consider the possibility of mechanically securing
a Shoring Frame.
The Examiner has acknowledged that the claimed structure is
useful and novel and, therefore, the only requirement that
remains is whether the claimed structure required inventive
ingenuity.
The Official Action states that "no inventive ingenuity is
required to do the strengthening and no new and unexpected
result was produced". The required "inventive ingenuity" in
the present structure is not restricted to the particular
combination of components found to be satisfactory for this
particular application which alone could satisfy the
requirement of inventive ingenuity but the recognition that a
mechanically secured Shoring Frame will meet the requirements
of a Shoring System.
The Examiner states that the particular joint in question is
"time honoured", however, the joint is question is not time
honoured for this application and departs dramatically from
the conventional connection used in shoring frames. This
joint when used in Shoring Systems results in a number of
advantages with respect to repair in the field and the
structural integrity of the repaired frame, assembly in the
field, dismantling for shipping etc. described in the
application which were not possible with existing Shoring
frames. The joint may be old for other applications, but
this is not the proper test to determine whether the claimed
combination having a restricted application is obvious.
Mr. Hall submitted an amended set of claims replacing the rejected claims
at the Hearing. This was followed by another amended set of claims
received on June 26, 1986.
The consideration before the Board is whether or not the latest amended set
of claims are allowable over the art of record. Claim 1 now reads.
A man handable shoring frame for supporting
vertical loads experienced in supporting poured in
place concrete structures comprising a pair of spaced
aluminium tubular legs each having a hollow core, said
legs being vertically orientated and joined by a brace
arrangement and a plurality of connector means for
mechanically connecting said brace arrangement to said
legs at connection locations, said brace arrangement
being adapted to stabilize said legs when under load,
each of said legs having spaced wall portions which are
substantially symmetrical about a plane containing the
longitudinal axes of said frame legs and which provide
areas for mechanical connection of said connector
means, as secured to portions of said brace
arrangement, to said legs;
each said connector means being mechanically
secured to said spaced wall portions at points spaced
in said connector means and spaced in the length of the
leg to oppose pivotal movement of said connector means
in the plane and including at least portions of the
connector means interior surface being adjacent at
least corresponding portions of leg exterior surface
between said spaced wall portions such that said brace
arrangement and said connector means cooperate to
maintain the spacing and vertical orientation of said
legs when said shoring frame is under load, each
connector means being mechanically secured to said leg
by clamp type fasteners which engage the interior
surface of said leg and the exterior surface of said
respective connector, said clamp type fasteners being
adapted to maintain the hollow core adjacent said
connector means substantially unobstructed.
Six references were cited in the Final Action. The applicant argues that
all of these citations relate to scaffolding which is primarily used to
provide access for workmen within or to the exterior of an existing
structure. He emphasizes that his application is concerned with shoring
which provides a support surface for forming a structure. It is the
Examiner's position that the only distinguishing characteristics of shoring
frames over scaffolds is its greater strength and size of elements and that
it is totally within the "skill of a tradesman to increase the strength of
a structural member to enable it to be used to support higher loads". He
maintains that the particular joint in question is time honoured as one of
the references is a 1905 patent.
We note that the applicant's frame leg is adapted to retain a connecting
bracket by bolt means. The U-shaped connecting bracket has a pair of legs
with each leg having a pair of holes to allow bolt means to attach it to
the frame leg. It also has a U-shaped connector stub with an aperture for
retaining the diagonal and horizontal braces between frame legs.
An advantage emphasized by the applicant is that his mechanical connection
of the brace arrangement to the legs of the frame permits use of brace
material different from the leg material. Also the mechanical connection
means allows for repairs to be made in the field where damage to components
may occur.
From the cited art we note that Pollman has a clamp for attaching the
braces to the legs in his scaffold. McDevitt uses pins in the construction
of his cargo storage rack. Brown shows a scaffold that has removable
diagonal braces bolted to the frame leg by means of a U-shaped bracket.
Bolt attachment means is shown in the cited art. In the application before
us the connector is secured at points vertically spaced in the connector to
oppose pivotal movement of the connector about a plane containing the
longitudinal axis of the frame legs.
It is stated in the Final Action that the joint in question is "time
honoured" and the slightly different cross-section for the applicant's leg
supports does not add patentability to the connection. Looking at the
Taylor citation we find a hook and pin arrangement to attach a bed frame
to a head frame. Beals shows the use of a U-shaped clip to assemble square
metal tubing into a framework and Taillefer has adjustable cross bracing
having U-shaped ends for attaching to welded frames by pin means.
Applicant's frame comprises a pair of legs having horizontal and diagonal
brace members bolted by connecting brackets wherein each bracket has holes
near the top and bottom thereby providing spaced connection points to
oppose pivotal movement of the structure in the plane containing the
longitudinal axes of the frame legs. There is no teaching of a frame
and cross bracing connected together in that manner in the cited art.
We agree with the conclusion in the Final Action that it is totally within
the skill of a tradesman to increase the strength of a structural member
and that inventive ingenuity is not required for increasing strength of a
member. However, the application before us does not only deal with
increasing the strength of a member but also describes a manner of
assembling the frame components which is not shown in the cited art. More
particularly the amended claims detail structural cooperation between leg
and connector components to obtain a shoring frame for supporting heavy
vertical loads.
Amended claims have been submitted by the applicant to replace the rejected
claims. In our view the amended claims received on June 26, 1986 are
acceptable over the art of record before us and we recommend that
permission to enter these claims be granted to the applicant.
M.G. Brown S.D. Kot
Acting Chairman Member
Patent Appeal Board
I have carefully considered the findings and recommendation of the Patent
Appeal Board. Accordingly, I withdraw the Final Action and grant
permission to enter claims 1 to 48 received on June 26, 1986 for
consideration by the Examiner. I remand the application for prosecution
consistent with the findings.
J.H.A. Gari‚py
Commissioner of Patents
Dated at Hull, Quebec
this 18th day of August 1986