Application of Rothermel, Patent Appeal No. 6470.
| Citation | 276 F.2d 393,125 USPQ 328 |
| Decision Date | 30 March 1960 |
| Docket Number | Patent Appeal No. 6470. |
| Court | United States Court of Customs and Patent Appeals |
| Parties | Application of Edward M. ROTHERMEL and Russell B. Waddell, Jr. |
Reuben Wolk, I. Louis Wolk, Los Angeles, Cal. (Lawrence B. Biebel, Dayton, Ohio, of counsel), for appellants.
Clarence W. Moore, Arthur H. Behrens, Washington, D. C. (D. Kreider, Washington, D. C., of counsel), for the Commissioner of Patents.
Before WORLEY, Chief Judge, and RICH, MARTIN, SMITH, and JOHNSON (retired), Judges.
This appeal is from the decision of the Board of Appeals, affirming the examiner's rejection of claims 15 through 20, in appellants' application Serial No. 496,507, filed March 24, 1955. No claims have been allowed. The application is a continuation in part of application Serial No. 398,126, filed December 14, 1953, and of application Serial No. 448,722, filed August 9, 1954.
The invention relates to reinforced, flexible conduits of the type commonly used as vacuum cleaner hose which must be relatively light weight and flexible. Use of a relatively thin, pliable conduit gives light weight and flexibility but such a conduit would collapse in use. The prior art shows reinforced flexible conduits having an inner reinforcing member in the form of a helical spring over which is secured a thin, pliable conduit covering, hereinafter termed the "sheath." Appellants assert that the conduits of the prior art are bulkier and less flexible than are conduits produced according to the invention here claimed. Such conduits are asserted by appellants to be less durable and less desirable for their intended uses than are the conduits made according to their invention.
Appellants' conduit as here disclosed and claimed consists generally of an inner helical reinforcing member formed from plastic covered wire covered by a sheath formed of a thin plastic deformable tube. Two features of asserted novelty are (1) the relatively smooth inner surface of the conduit and (2) the bonding of the sheath and the helical reinforcing members at the relatively narrow line of contact between the crest of each convolution of the sheath and the outer periphery of the helical reinforcing member. Both of these features are included in the claims on appeal of which claim 15 is representative:
Emphasis added.
The references relied on are:
Hopkinson 489,478 Jan. 10, 1893
Vance 2,550,099 Apr. 24, 1951
Roberts 2,560,369 July 10, 1951
Martin et al. 2,641,302 June 9, 1953
The examiner and the board, while conceding that the conduit claimed in claims 15-20 is novel, have refused to allow the claims, which stand rejected under 35 U.S.C. § 103 as covering an obvious improvement over the prior art.
The rejection of claims 15, 17, and 20 is based on Roberts as the basic reference taken with the secondary references to Vance or Martin. Claims 16, 18 and 19 are similarly rejected but with the references further modified by the teachings of Hopkinson.
The board also rejected the claims as being directed to features which were not disclosed in the specification as critical features of the invention.
Roberts, the primary reference, discloses a method for making flexible conduits for use in gas masks, anesthetizing equipment and the like. The conduit consists of a helical metal support to which is vulcanized a convoluted rubber tube as the sheath. The convolutions of the sheath extend beyond the metal support and form a corrugated inner surface in the conduit. The helical support and the sheath are vulcanized at all points of contact.
The two secondary references, Vance and Martin may be treated as one. Each discloses a flexible vacuum cleaner hose consisting of a bare wire helix supporting a convoluted plastic sheath. In neither reference is the sheath bonded to the helix. In each, the spaced relationship of the individual coils of the helix is maintained by convolutions formed in the sheath by externally winding a plastic cord around the outside of the plastic sheath and between the individual coils of the helix. The plastic cord is subsequently bonded to the sheath and becomes an integral part of the hose.
Hopkinson discloses a hose having an inner spiral member in the form of a helix formed of hard rubber which is embedded in and completely covered by a flexible sheath. The interior surface of the hose is a cylinder of substantially constant diameter and presents a minimum of interference to a fluid flowing through the sheath.
The flexibility of the conduits covered by the claims on appeal is due to the deformable convolutions of the sheath and the flexibility of the helical support. When such a conduit is flexed, at the outer portion of the bend the spaces between the turns of the helix are increased, while at the inside of the bend the successive turns of the helix are brought closer together. During this action, the convolutions of the sheath are folded and unfolded as required to permit this movement of the successive turns of the helix.
Appellants contend that improved flexibility of their conduit is achieved because of the narrow area of bonding between the crests of the convoluted sheath and the outer periphery of the helical support. They assert that minimum resistance to the flow of air and particles through the conduit is achieved by its relatively smooth and continuous interior.
It is appellants' position that these admittedly novel structural features are not obvious differences over the prior art. In support of this position, appellants filed certain affidavits to prove new and unexpected results as well as the commercial acceptance of conduits made according to their invention. Where, as here, we are faced with the necessity of determining whether a novel change is obvious, such affidavits can be particularly helpful when they are secured from those actually having skill in the art. It is the practice of this court to consider such affidavits when they supply the facts necessary for consideration in making a proper determination of the issues. The conditions under which such affidavits are to be considered were set forth in In re McKenna, 203 F.2d 717, 40 CCPA 937. To these conditions we think there should be added the further requirement that such affidavits should be timely filed before the examiner so that the Board of Appeals as well as this court will have the benefit of his views.
Appellants filed two affidavits of one Ralph C. Osborn. The first was filed after the final rejection by the examiner and the second was filed after the decision of the Board of Appeals. We do not consider such filings to have been timely and, in the absence of any showing justifying such a late filing, we are unwilling now to consider the factual matters contained therein.
The affidavit of Sidney K. Lamden was filed in time but is directed to showing certain sales figures of types of hose which he asserts were "manufactured in accordance with application Serial No. 448,722" and which, he further asserts, were of the type "described and claimed in" the application here before us. Such general conclusions of a sales manager do not permit us to determine whether the hoses referred to in the Lamden affidavit were, in fact, hoses having the particular characteristics of the invention in the rejected claims. In addition, application Serial No. 448,722 is not before us and we have not been supplied in the record with any information as to its teachings. Viewed as an attempt to show the commercial acceptance of a hose embodying the present invention, this affidavit states at best a series of lay conclusions rather than facts upon which to predicate a judicial determination.
We are unable to find in the Lamden affidavit any statement of facts which support the conclusions we are asked to draw from it. The examiner was properly critical of this affidavit. Accordingly, we have disregarded it in our consideration of the issues.
We are left, therefore, with appellants' disclosure and the teachings of the prior art from which to draw the facts upon which we can base our decision.
The examiner and the board in rejecting the appealed claims did so by what appears to us to be a piecemeal reconstruction of the prior art patents in the light of appellants' disclosure. Thus one element of the claims, the inner reinforcing...
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