COMMISSIONER'S DECISION
S2, Utility. The specification and arguments failed to provide sufficient description
of the invention to determine utility, and no operational data was advanced persuasive
of reduction to a practical form. Refection affirmed.
This decision deals with the Applicant's request for review by
the Commissioner of Patents of the Final Action on application
474,156 (Cl. 171-85) filed February 13, 1985. It is entitled
Pressure Cushion Motor Turbine and the inventor is
Eugene Niderost. The Examiner in charge issued a Final Action on
February 7, 1989 refusing to allow the application.
The invention relates to a rotary engine in which air and fuel
are ignited and the exhaust gases are said to push a spring
against a rotor element to cause motion. Figure 2 reproduced
below shows the device:
(See formula 1)
The exhaust gases are fed through a distribution chamber that is
part of the shaft 68 and via a radial passage 70 to a radially
spaced chamber 53 having a movable wall 54 with a spring 55, and
an opposite movable wall 57 with a spring 59. The gases pass via
the passage in rod 51 into pressure segment 60.
In taking the Final Action the Examiner refused the application
as being inoperative. That action stated (in part):
...
The essence of Applicant's device is a chamber or a
series of chambers in a rotor. Each chamber is filled
in turn by a highly pressurized mixture of gases which
are the result of the combustion of compressed air and
a fuel which are ignited by a spark plug. When the
chamber is pressurized a "pressure wall 57" is moved
compressing a "reaction spring 59". The pressure is
held in the chamber, the spring 59 reasserts itself and
since it cannot push against the pressurized gases,
pushes against the rotor which causes the rotor to
rotate.
If this is, in fact, the basis of Applicant's device,
Applicant must be aware of Charles' Law which is
generally expressed
(See formula 1)
where P1 = a first pressure; P2 = a second pressure
V1= a first volume; V2 = a second volume and
T1 = a first temperature; T2 = a second
temperature:
in this case it can be assumed that temperature will
remain constant.
When the "pressure chamber" has been filled with the
ignited air-fuel mixture the pressure from this mixture
acts equally in all directions, not only against
"pressure wall, 57" but also against "backup wall, 54"
which form the two moveable components in the "pressure
chamber".
Behind each of the two walls, 57 and 54, is a spring;
"spring 55" behind "backup wall, 54" and "reaction
spring, 59" behind "pressure wall, 57". The two walls,
57 and 54 exert a force against the springs, which if
the gas pressure acting on the walls is great enough,
forces the springs to contract. The springs will
contract until the gas pressure acting against the two
walls, 57 and 54, equals the force of the two springs,
55 and 59. Once these forces are equal an equilibrium
state is reached no further compression or expansion of
the springs can occur nor can any movement of the walls
57 and 54 occur.
If the "reaction spring 59" attempts to push against
the rotor to cause the rotor to rotate it must expand
and if the "spring 59" expands then the "pressure wall
57" must remain in the same position relative to the
"main shaft 68" while the rotor rotates. In other
words the area behind the "pressure wall, 57" must
increase in volume as the "spring 59" pushes against
the rotor.
...
Clearly since any expansion of the spring results in an
immediate counter-force on the "pressure wall 57"
there can be no expansion of the spring if the pressure
of the gas remains constant. However, the gas bleeds
from the chamber through the hole in "connecting rod,
51" to "pressure segment, 60".
...
Since the gas is bled off without stopping, the
"reaction spring, 59" as well as the "spring, 55"
should return smoothly to their at rest positions.
Furthermore Applicant has shown in figure 2 "backup
wall 54" and "spring 55" which are placed in "chamber
53" to absorb excess centripetal force". The method by
which this is done is not given as centripetal force as
defined by Fundamental Physics Halliday and Resnick,
published by John Wiley and Sons Ltd. Toronto, 1970, as
forces being directed toward the centre and "back-up
wall 54" and "spring 55" are at right angles to the
centre of the rotor. However when the "chamber 53" is
pressurized and since the pressurizing force will act
equally in all directions ... any contraction of
"spring 55" would be on the same basis as "reaction
spring 59". An argument that the volume could be
maintained by "spring 59" expanding and the "spring 55"
contracting is again spurious. Once the pressure gases
enter the "chamber 53" and equilibrium is reached the
only... movement of the "pressure wall 57" or the
"reaction spring 59" is by more energy being added to
the "reaction spring 59" or the gas pressure
decreasing. The latter is what in fact happens.
"Connecting rod 51" has a hole through its length which
allows gas to escape to "recess 62" which changes the
equilibrium state with respect to P1V1 = P2V2 and allows
the springs to reassert themselves. ...
...
In the Applicant's response dated April 2, 1988 he
states that "your office action (January 4, 1988)
contains a statement that a spring is expanding, in no
way, is anywhere in the application written that a
spring is expanding, in contrary only a compression of
a spring makes a rotation possible." This is in
agreement with page 8 lines 11 to 18 where applicant
states that the compression of the "reaction spring,
59" is the condition required to cause rotation of the
rotor. This appears to be the basis of the device that
the applicant has built.
...
In responding to the Final Action, the Applicant submitted a
first letter, and a second letter, both dated June 6, 1989. In
the first letter of response the applicant stated, in part:
...
The applicant has found that the examiner does not
understand the application at all. One has to be
skilled in the art to understand, basic physics is here
the pre requisite, dealth is here not with something
from gardener or a pastry baker, dealth is here with
the findings of an expert, the applicant hates to brag,
but it is so. Who ever wrote this response got lost in
the jungle of technological details. There are
professors in Ottawa to be consulted in case of doubts,
the applicant did the same thing. The applicant is
still convinced that this application is perfect in
every detail.
Alone our atmosphere could pump water for millions of
years, all one has to do, make use of the nature laws.
The applicant suggest strongly to enter this
application.
...
In the second letter dated June 6, 1989, the Applicant argued as
follows, in part:
...
The applicant is mailing a letter of commendation of
the faculty he has graduated in 1988, he also would
like to suggest that he is the expert in the functional
matter of this application.
As the next step the applicant would like to define the
word
AMBIGUOUS
Ambiguous is something, that is hard to accomplish,
like for example, sitting on a chair and trying to move
that chair by pushing on the chair one is sitting on.
Double functioning machinery is well known such as:
Electric motors becoming generators by switching.
Turbo charged engines being partly driven by exhaust.
Over 30 years ago, diesel engines of Brown Bovery have
been charged 150% of the original fuel power. So this
Motor Turbine is also of double function and falls
under this category, and is not AMBIGUOUS.
The applicant has once more taken the time to make a
sheet of sketches of a single pressure cushion, to show
that expansion is only possible in the direction shown
on the cross-section on the sketch (1)
A1 is the adiabatic due to explosion pressure. A2 is
the equivalent of the cross-section of the inside of
the Motor, to be filled with burned gas or air. A3 is
the adiabatic of one segment in the air pump.
The formula of your response P1 x V1 ~ T1 = P2 x V2 ~ T2
does not apply on this engine. The compression is
accomplished by the rotary air pump and must therefore
be calculated as an ideal gas compression which is the
adiabatic. The isentropic is also not required since
compressed air and the injected fuel meet in the rotary
combustion chamber to ignite.
...
Since the applicant has designed the first rotary
compressor pump to overcome the power requirements for
the compression cycle and was granted a degree in
Science for it by accredited professors, he would like
to present the proper formula to calculate this engine.
The formula is: (See formula 1)
The diagrams are all given in the SKETCH (1) to
demonstrate how they should looke like.
The applicant would like to state further that the
explosion has the sole purpose to squeeze the expanding
gas into the pressure cushion.This is clearly stated in
the application starting with page 7 of the disclosure
looking at Figs. 3,5,8,10.
To what pressure that will go is not required in the
patent and is not claimed.The pressure build-up must be
there or the engine is of no use, and this, the
applicant is fully aware of.
The applicant knows that such a motor does need a
certain degree of engineering physics and for that
matter one has to be skilled in the art to understand
it.Heat anticipation in this application is of no or at
least little consequences and can be negligible,
despite that the applicant makes use of a air-pump of
common type. The principle of this engine is absolutly
sound and 100% perfect as the sketch below will
demonstrate.A brief description of the drawings is
given as per rule 23 on page 4 of the appication.
(See formula 1)
From the office response on page 4,No2
At third degree position is refered to Fig.4,and is the
position 3· before the 0·, used as the air-gas mixture
intake.
No3. The connections are clearli shown on Fig. 2 and
are shown in Fig.8 as 'B'.
No.4.Static pressure is a pressure not rushing over an
object like a turbine fan ect.
No.5 Combustibles can also be burned and that was
stated that way in the application.
The applicant states that this is only a principle
patent and does not claim any machine elements, nore
their names.The Wankel engine has, besides the
principle patent, 120 sub-patents.
For example the response states on page one, for Claim
1, that the applicant used wrong terminology.There can
be as many different connecting rods as there are
machines on this earth. One can patent the different
rods, but not the name.How many differrent diesels are
on this earth?
This response would force the applicant to write a
disertation, he may do this later on, certainly not in
the patent office.
(See formula 1)
The issue before the Board is whether or not the disclosure sets
forth an invention that is operative and useful as required by
Section 2 of the Patent Act. Claim 1 reads:
A new and improved motor comprising:
a) a stator structure and a rotor structure,
b) a rotor with at least one so named pressure cushion
wherein the cushion is the vollumena of the pressure
chamber enclosed by side walls, backup wall and
pressure wall, wherein the pressure wall is the
moving part capable to compress compression springs
between pressure wall and rotor,
c) a rotor with at least one backup wall connecting-
rod pressure-segment assembly, opposing the pressure
wall in (b) wherein the pressure-segment has rollers
pressed against the neutral housing so as by forced
increase of the pressure in the chamber the
expansion of the cushion is only possible by way of
the pressure wall,
d) a backup wall connecting-rod pressure-segment
assembly has pressure segments with rollers and the
rollers are located in the pressure segments having
a recess with seals for counter pressurization to
relieve the rollers of excessive pressure for longer
life, and furthermore the seals close off the recess
of carbon monoxide.
e) a backup wall connecting-rod pressure-segment
assembly with the backup wall located in the rotor
with the connecting rod protruding through the
periphery of the rotor to enable the above named
assembly being backed to the permanent housing wall
as repellor, so the contact of pressure centre will
be forcefully pulled along at 360ø maintaining the
free force at all times.
A careful review of the prosecution of this application has been
made. The Applicant revoked the appointment of agent as of
July 7, 1987 and has responded to the Examiners' actions since
that time.
In the United States Patent 4,347,698 to Nelson, referred to in
this application, a rotary engine is described that shows in its
Figure 1 reproduced below, that exhaust gases 33 from an ignited
air/fuel mixture are led from a radially spaced chamber 3 via
exhaust duct 6 to discharge port 24. The Board notes that the
Applicant's device operates in a manner similar to the Nelson
device, i.e., by making use of exhaust gases.
(See formula 1)
The Nelson Patent attributes the driving torque to the reactive
power of the exhaust gases leaving chamber 3. Here, the
Applicant believes the reaction of the spring 59 pushing against
the rotor creates the driving force, not the exhaust gases
entering chamber 53 and exiting through the passage in rod 51 and
hitting the wall of the pressure segment. For his part, the
Examiner has discussed in the Final Action the equal reaction of
the gases on both the walls and their springs when the gases
enter the space between the walls. The Applicant does not refute
the arguments presented in the Final Action with regard to walls
54 and 57, and springs 55 and 59, but he submits additional
hypothesis on the working of his device. He adds the Examiner
does not understand the application and suggests consultation
with professors.
The Examiner has presented detailed rejection with respect to all
the claims in the application. However, the Applicant has not
discussed the rejection of the claims in any of his responses.
The Board believes the Examiner's rejection has merit and since
the Applicant has not responded, the Board thinks that all the
claims fail on the grounds of indefiniteness and ambiguity, and
that they do not comply with Section 34(2) (formerly Section
36(2)), of the Patent Act.
More importantly, the Applicant must satisfy the requirements of
Section 2 of the Patent Act by satisfactorily showing how his
invention exhibits utility. Section 2 states:
"invention" means any new and useful art, process,
machine, manufacture or composition of matter, or any
new and useful improvement in any art, process,
machine, manufacture or composition of matter;
A main concern of the Board at this juncture is the operation or
use, i.e., the utility, of the invention as contemplated by the
inventor. The disclosure of the application has promised a
result due to the action of the spring 59, and this promised
result must be attainable by a person skilled in the art. There
are numerous court cases that have dealt with the requirement
that the specifications of an application shall set forth a
correct and full account of the manner of operation. In this
regard, the Board is guided by the rationale provided by the
Courts.
In the Exchequer Court decision in Minerals Separation v. Noranda
Mines. Ltd., (1947), Ex. C.R. 306, Thorson P. stated at page 316:
Two things must be described in the disclosures of
a specification, one being the invention, and the
other the operation or use of the invention as
contemplated by the inventor, and with respect to
each the description must be correct and full.
The purpose underlying this requirement is that
when the period of monopoly has expired the public
will be able, having only the specifications, to
make the same successful use of the invention as
the inventor could at the time of his application.
The description must be correct; this means that
it must be both clear and accurate.
And at page 317 he stated:
When it is said that a specification should be so
written that after the period of monopoly has
expired the public will be able, with only the
~~~~ ~o put the invention to the same
successful use as the inventor himself could do,
it must be remembered that the public means
persons skilled in the art to which the invention
relates, for a patent specification is addressed
to such persons.
The issue of utility was dealt with in Northern Electric v.
Brown's Theatre, (1940), Ex. C.R. 36 at 56, in the following
passage:
An invention to be patentable must confer on the public
a benefit. Utility as predicated of inventions means
industrial value. No patent can be granted for a
worthless art or arrangement. Here there is described
and claimed something that lacks utility because it is
inoperable for the purpose for which it was designed.
Relevant too, is the passage from Raleigh Cycle v. Miller, (1946)
63 R.P.C. 113 at 140 which reads:
In other words, protection is purchased by the promise
of results. It does not, and ought not to survive the
proved failure of the promise to produce the results.
In Re Le Rasoir Appolo, (1932) 49 R.P.C. 1, the Court found that
where the theory forming the basis of a patent is erroneous,
there is no subject matter, and hence no utility is provided.
In Wandscheer v. Secard. (1946) Ex. C.R. 112, and (1948) S.C.R.
1, it was held that:
The test of utility of an invention is that it should
do what it is intended to do and that it be practically
useful at the time when the patent is issued for the
purpose indicated by the patentee.
In the recent Supreme Court of Canada decision in Pioneer Hi-
Bred v. the Commissioner of Patents, given June 22, 1989, Mr.
Justice Lamer, in refusing to grant a patent, pronounced there is
no ambiguity in the Patent Act that an invention must be
described completely in order that it may be used by a person
skilled in the art. In Mr. Justice Lamer's words: "the inventor
must describe not only how the invention can be used but also how
a third party can make it". In view of the Court's direction,
the inventor's comment that all that is needed is consultation
with professors to enable an understanding of the application,
does not satisfy a basic requirement of the Act, namely, that the
invention shall be sufficiently described in the application.
In the response of June 6, 1989 to the Final action, arguing the
Examiner does not understand the invention, the Applicant
comments "there are professors in Ottawa to be consulted in case
of doubts, the Applicant did the same thing." The Applicant,
however, does not say what response he received as a result of
the consultation, nor is there supplied any corroboration in the
form of data from a recognized source that explains the subject
matter of the application.
In particular there is no explanation, in the Board's opinion,
that sufficiently identifies how or why the pressure reacts only
on the area of the wall 57 and not equally on the area opposite
it that is made up of the wall 54 and the passage 51, nor is
there any satisfactory description of the effect the gas
discharge via passage 51 has on the expansion of the gas in
chamber 53. In the Sketch(1) which includes Figure 2 of the
application, the passage 51 is shown as spaced from the housing.
The application on page 8 describes the flow of the gases as
"going through the hole of the connecting rod 51 (to
fill) all the inside of the housing 12 and 13. This
will equally pressurize all the pressure cushions from
the surrounding space around the rotor....
This static pressure forces the pressure wall 57 to
expand... and by doing so forces the compression springs
to be compressed and these springs in turn force a
tangential force... upon the rotor... and so rotation
has to start."
The term "static pressure" is not understandable from the above
passage in the application, for there is a flow of gases under
pressure into the chamber 53, and as they expand they act on all
surfaces therein with dynamic fluctuating pressure, not static
pressure. This flow of dynamic fluid pressure is the condition
that appears to be in the Nelson Patent.
In the Board's view, it appears that the Applicant's device is in
effect operating by the action of gases such as may occur in the
Nelson device, and that the term "static pressure" does not
accurately describe the condition in the chambers. Further,
while there is mention of equal pressure in the pressure
cushions, there is no account nor realization of the equal
pressure on all surfaces of the chambers, which equalization
would mean, as the Examiner has reasoned, that both walls in the
chambers should move. Assuming, as in the Nelson Patent, that
there are no springs in the chambers, it would appear to the
Board that the gases would act on all surfaces equally. The
insertion of springs in the chambers does not negate the action
of the gases. Thus, it is not evident to the Board that it is
the action of the spring that causes the rotor to move, as the
Applicant believes. The Applicant argues that his device
operates on a new principle, whereas the Board does not find in
the application and the arguments that there is sufficient
description or reasoning for the Board to agree with the
Applicant.
The Board is not persuaded by the Applicant's arguments. In the
Board's opinion, no satisfactory response has been made to the
Examiner's objections. Accordingly, the Board sees no reason to
differ with the reasons advanced by the Examiner.
The Board is not prepared, therefore, to accept the Applicant's
specifications that present a theory that has not been
satisfactorily explained in view of existing, accepted
principles, or that relies on an unspecified or unsubstantiated
source of technical information. The applicant maintains that
"heat anticipation in this application is of no or at least
little consequence and can be negligible", and that he presents
the "proper formula to calculate his engine", saying he is the
expert in the functional matter of this application. In the
absence of any operational data of the alleged invention from a
recognized authority in the scientific field, the Board is of the
opinion that the theory advanced in the application has not been
reduced to a practical form, or may be impossible to reduce to a
practical form.
The Board is satisfied that the application does not describe a
practical energy producing engine, and that the arguments do not
demonstrate the operability of the device.
The Board recommends affirmation of the refusal of the
application for failing to describe a useful device.
M.G. Brown
Acting Chairman
Patent Appeal Board
I concur with the findings and the recommendation of the Patent
Appeal Board. Accordingly, I refuse to grant a patent on this
application. The Applicant has six months within which to appeal
my decision under the provisions of Section 42, formerly Section
44, of the Patent Act.
J.H.A. Gari‚py
Commissioner of Patents
dated at Hull, Quebec
this 13 day of August , 1990
Eugene Niderost
66 Madison Avenue
Toronto, Ontario
M5R 2S4