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                    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

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