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  IN THE CANADIAN PATENT OFFICE

 

   DECISION OF THE COMMISSIONER OF PATENTS

 

Patent application number 496,903, having been rejected under

Subsection 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:

 

Applicant

 

Mr. William R. Cruikshank

Halifax YMCA

1565 South Pk. St., #313

Halifax, Nova Scotia

B3J 3H1

 

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

the Commissioner of Patents of the Examiner's Final Action on

application number 496,903 (Class 310-63) filed on December 5,

1985 and entitled "Magnetic Force Device". The inventor, William

R. Cruikshank, prepared, filed and prosecuted his own application

without the assistance of a registered patent agent. In response

to the Examiner's request for a working model of the invention

Mr. Cruikshank filed a small paper model of one of the

embodiments of his device.

 

The application relates to a device for lifting and propelling

machines including aircraft, spacecraft, submarines, ships, land

vehicles and rail guided machines. The device purports to use the

magnetic attractive force between magnets of opposite polarity to

generate thrust.

 

The application contains twelve drawings of which Figure 1 shows

a cross section of an embodiment of the device which generates

thrust in one direction. Figure 4 shows an embodiment of the

device which generates thrust in two directions and Figure 6

shows an embodiment which allegedly generates thrust in four

directions.

 

The alleged invention is best illustrated by Figure 1 wherein the

poles of upper magnet 1 and the poles of lower magnet 2 are

separated by wedge shaped gaps. The upper magnet is attached to a

beam 1D and the lower magnet is attached to beam 2D with the

lower magnet being an electromagnet. While not specifically shown

in Figure 6 it is apparent that beams 1D and 2D are held in a

fixed relationship to each other. Figure 1 is reproduced below:

 

                  <IMG>

 

       The application contains twenty-two claims and independent claims

       1 and 22 read as follows :

 

       (1) A machine in which one or more magnetic force devices each

       comprising two or more magnets separated from each other by two or more

       wedge shaped gaps with adjacent poles of the two or more magnets alternating

       in polarity across the gaps, the magnets fastened to one or more supporting

       beams, with one or more of the magnets an electromagnet and with magnetic

       pole faces of the magnets oriented relative to the axis of the device to produce

       a force, when the one or more electromagnets is energized, in one or more

       directions along one or more of the principal axis of the machine.

 

       (22) A machine in which a power and control system for propelling and

       controlling machines in translational and rotational motion along one or more

       axis comprising: steering and control in the horizontal plane; elevation,

       banking and level control; height and hover control; acceleration control; speed

       control; motor control for one or more direct current motor-generator sets;

       magnetic force devices arranged in the vehicle in one or more groups and

       sections to produce force along the principal axis in which the directional

       controls are inter-locked with the acceleration and speed controls in multiple

       directions using feedback and with feedback from the various controls to the

       motor-generator set controls and with operator and other extraneous inputs

       from associated equipment.

 

       The Examiner issued a Final Action on March 10, 1992 refusing all

       of the claims in the application and the application itself. The

       grounds for refusal were threefold, firstly for lack of invention

       in view of cited references and in view of the common knowledge

       of magnetic forces as shown in several text book references,

       secondly for lack of utility and thirdly for being indefinite.

 

       In the Final Action the following references were cited:

 

Unites States Patents

 

       4,259,908      April 7, 1981      Feistkorn et al

       3,842,748      October 22, 1974   Schwarzler et al

 

Text Books

 

       Principles of Electricity,

       Page and Adams

       Van Nostrand, 1949, pages 116-117

 

       Elements of Electrical Engineering

       Cook and Carr

       John Wiley, 1947, pages 28-29

 

       Principles of Electrical Engineering

       Timbie et al

       John Wiley, 1951, pages 328-330

 

       In rejecting the claims, as well as the application, the Examiner

       stated (in part) that:

 

Claims 1 to 22 as well as the remainder of the application are rejected far lack

of invention in view of the patents to Feistkorn et al, Schwarzler et al and

common knowledge of magnetic forces as shown in the three reference books.

 

In response to the last examiner's report the applicant states in his letter dated

April 13, 1989 that his invention requires an exact geometric design for the

magnets combined with an exact geometric arrangement of one magnet relative

to another. The invention is in the geometry of the design and involves a new

type of magnetic levitation system.

 

................

 

The "geometric design" of the applicant is not an improvement over the prior

art because this "geometric design" increases the air gap between the poles of

facing magnets and therefore increases the magnetic flux leakage. In figure 1

of the drawings, the facing magnet poles N and S have non-parallel surfaces.

As disclosed by Page and Adams, the magnetic force between two poles of a

magnet is inversely proportional to the square of the distance between the two

poles. Timbie et al disclose that in a magnetic circuit containing air gaps, the

greater part of the magnetomotive force is consumed by the gap. Contrary to

these well established principles in magnetic systems design and the well

known law of physics stated above, the applicant's magnets configuration will

create a large leakage flux because of the great distance D2 (figure 1) between

the upper portions of the magnet poles N and S. This is the reason why the air

gap between the poles of facing magnets is usually kept as small as possible to

obtain the maximum magnetic force between these two parts.

 

The disclosure is further rejected under Section 34(1) of the Patent Act for

being indefinite. The application contains numerous ambiguous statements.

For example on page 4 it is stated that the upper magnet is fastened to a beam

1D and that the lower magnet is fastened to a beam 2D and that there is no  

relative movement between beams 1D and 2D, whereas on page 1 it is stated

that the magnetic force device is used for lifting and propelling machines

including aircraft, spacecraft, land vehicles and on page 10 the device can

hover at any altitude including above the atmosphere (deep space).

 

The applicant at pages 1 and 10 of the disclosure states that the invention could

be used to hover at any altitude including above the atmosphere (deep space).

This is contrary to basic principles of magnetic levitation, as shown above,

where the gap between two facing poles is kept very small. The application is

therefore rejected under Section 2 of the Patent Act as unworkable (lack of

utility) because it will not produce the intended result (hover in deep space).

 

In reviewing the references that were cited during the

prosecution of this application, the Board notes that the text

books relate to elementary principles of electricity and

magnetism. These texts appear to have been cited merely to

provide background information and are not directly related to

the Applicant's device. As such they were not analyzed in detail

by the Board.

 

United States patents 4,259,908 and 3,842,748 are each directed

to a magnetic suspension system for vehicles which comprises a U-

shaped electromagnet attached to the vehicle, the poles of which

extend towards another magnet which is attached to a support.

 

There is a narrow gap between the adjacent poles, with the faces

of the adjacent poles being flat and parallel to each other. In

one embodiment, shown in Figure 3 of patent 3,842,748, there is a

wedge shaped gap between the poles of the adjacent magnets. The

magnets move with respect to each other as the vehicle moves with

respect to the support.

 

The Board is of the opinion that the cited references each show

all of the individual elements claimed in claim 1 of the instant

application. However, the applicant has emphasized one

fundamental difference between his device and the prior art. In

the references, the magnets move with respect to each other while

in Applicant's device, the magnets remain stationary with respect

to each other. Because the devices shown in the prior art are

directed specifically to transportation systems where relative

movement between the magnets is essential, indeed the entire

reason for the devices, it is the Applicant's argument that it

would not be obvious to modify the prior art devices in such a

way as to prevent the magnets from moving relative to each other.

In considering the matter the Board accepts Applicant's argument

that the two cited United States patents are directed to

inventions different from the alleged invention disclosed by the

Applicant. It is the Applicant's position that the two magnets

(shown in Figure 1 for example) are an unitary device where the

beams 1D and 2D are integral parts of the whole device.

Therefore the Board concludes that Applicant's device differs

from the prior art devices cited by the Examiner.

 

The Board will now deal with the Examiner's refusal of the

application on the grounds of lack of utility. Section 2 of the

Patent Act sets out the requirement that, in order to be

patentable, an invention must exhibit utility. In the Exchequer

Court decision in Mineral Separation v Noranda Mines Ltd.,

(1947), Ex. C.R. 306, Thorson P. stated, at page 316, that:

 

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.

 

In its basic form (Figure 1), the device-claimed in claim 1

consists of two magnets, each of which is bolted to a beam with

other embodiments having additional magnet pairs. These pairs of

magnets are oriented at different angles to each other in order

to generate forces which are alleged to act in a variety of

different directions.

 

The Applicant has made it clear throughout the prosecution of the

application that there is no relative movement between the beams

so, as a consequence, there can be no relative movement between

the magnets. The Applicant claims that the device can be used as

a support device for lifting and propelling machines of all

sorts. However, there is no explanation of how the lift device

interacts with the machine which is to be lifted or propelled.

Is the lift device part of the machine or is it a separate

mechanism? The Applicant has devoted a considerable amount of

the disclosure to equations which can be used to calculate many

of the design parameters such as size of the magnets, the amount

of power required etc. but has not given any indication of the

practical application of the device. It would appear to the Board

that the Applicant is confusing the concept of magnetic force

with thrust, i.e. the attractive force between two magnets of

differing polarity and the concept of a thrust which could propel

a vehicle.

 

A worker in this field of technology should be able to make use

of the invention by making use of the information given in the

disclosure of the application. However, the information set forth

in the disclosure of the application does not satisfy this

requirement. Before attempting to put the alleged invention into

operation, a worker skilled in the field of transportation would

first have to discover how to construct an operable embodiment of

the Applicant's device. This is not merely a question of some

minor detail taut lies at the very heart of what the Applicant

feels he has invented.

 

It is the Board's opinion that the application does not set forth

in clear and concise terms how an operable embodiment of the

Applicant's device could be constructed and thus fails to meet

the requirements of Section 34 of the Patent Act.

 

The Board feels that this lack of explanation of the practical

mode of operation of the lift device may have contributed to the

Examiner's difficulty in understanding what the Applicant feels

he has invented and has resulted in the refusal of the

application on the grounds of ambiguity. This is the case in

claim 1. The Applicant has defined the elements of the device

but is ambiguous as to how in the device the magnetic force

produced along the principal axis of the machine translates into

physical motion. A similar difficulty arises with claim 22.

 

Reference is made to systems for controlling the vehicle's

movement utilizing the magnetic forces produced along the

principal axis (for example). The claim is ambiguous and

indefinite since there is no indication of how the magnetic force

between two magnets fixed in positions relative to one another

generates the thrust needed to propel a vehicle. It is for these

reasons that the Board agrees with the Examiner's assessment that

the application is indefinite.

 

In conclusion the Board recommends that the rejection of all of

the claims for lack of novelty over the cited prior art not be

supported but that the application be refused for failing to

disclose an operable invention and for failing to meet the

requirements of Section 34 of the Patent Act.

 

P. J. Davies                        M. Wilson

Chairman                      Member

 

I concur with the findings and the recommendation of the Patent

Appeal Board. Accordingly, I refuse to grant a patent on the

application. Under Section 41 of the Patent Act, the Applicant

has six months within which to appeal my decision to the Federal

Court of Canada.

 

M. Leesti

Commissioner of Patents

 

Dated at Hull, Quebec

this 30th day of November 1994

 

1995

 

   IN THE FEDERAL COURT OF CANADA

      TRIAL DIVISION

 

Between:

 

   WILLIAM RALPH CRUIKSHANK,

      Plaintiff.

        and

 

HER MAJESTY THE QUEEN AND

THE COMMISSIONER OF PATENTS AND

THE PATENT APPEAL BOARD

      Defendants.

 

   NOTICE OF APPEAL

 

Files on the 29th day of May , 1995.

 

Take notice that an Appeal is hereby filed in the Federal Court

of Canada under Section 41 of the Patent Act appealing the Decision

of November 30th, 1994 of the Commissioner of Patents and Patent

Appeal Board rejecting Application No. 496,903.

 

   The Appellant proposes that the Appeal be heard at Halifax or be

disposed of by Notice of lotion in writing under Rules 324-325.

Dated at Halifax, in them County of Halifax, Province of Nova

Scotia, the 29th day of May , 1995.

 

      William R. Cruikshank

                        Appellant

 

   Address: 1565 South Park St., Rm.313,

 

   Halifax, Nova Scotia,

 

   B3J 3H1.

 

1995

 

                  IN THE FEDERAL COURT OF CANADA

                        TRIAL DIVISION

between:

 

   William Ralph Cruikshank,

 

     Plaintiff.

and

Her Majesty The Queen and

The Commissioner of Patents and

The Patent Appeal Board

     Defendants.

 

INDORSEMENT

 

Notice to the Defendants.

 

   You are required to take cognizance of the within Notice of

Appeal and make opposition thereto in accordance with its terms

and the appropriate provision of the Rules of this Court.

 

   If you fail to do so, you will be subject to have such

judgment given as the Court may think just on the Appellant's

own showing.

 

Note: (1)Copies of the Rules of Court, information concerning

the local offices of the Court, and other necessary

information may be obtined on application to the Registry

of this Court at Ottawa(telephone 613-992-4238)or at

any local office thereof.

(2)This Notice of Appeal is filed by William R. Cruikshank

of Halifax, Nova Scotia Plaintiff.

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.