Application of Facius

• Citation: 408 F.2d 1396,161 USPQ 294
• Decision Date: 10 April 1969
• Docket Number: Patent Appeal No. 8238.
• Parties: Application of Thomas F. FACIUS.
• Court: United States Court of Customs and Patent Appeals

161 USPQ 294, 408 F.2d 1396 (1969)

Application of Thomas F. FACIUS.

Patent Appeal No. 8238.

United States Court of Customs and Patent Appeals.

April 10, 1969.

Davidson C. Miller, John F. Witherspoon, Stevens, Davis, Miller & Mosher, Washington, D. C., for appellant.

Joseph Schimmel, Washington, D. C. (Joseph F. Nakamura, Washington, D. C., of counsel), for the Commissioner of Patents.

Before WORLEY, Chief Judge, and RICH, SMITH, ALMOND, and BALDWIN, Judges.

BALDWIN, Judge.

This appeal is from the Patent Office Board of Appeals decision affirming the examiner's rejection of claims 1-4, all of the claims in appellant's application,¹ "as being unpatentable over the disclosure in Engalitcheff² in view of the disclosure in Dargavel³ under 35 U.S.C. § 103."

THE INVENTION

The invention "relates to evaporative heat exchangers and in particular to improved apparatus for the distribution of water over a heat exchange surface." The specification states:

A water distribution system involving troughs spaced apart so that air could flow between them is disclosed in * * * Engalitcheff. This invention involves an improvement over the disclosure of that patent.

The invention is reflected in representative claim 1, subdivided herein with bracketed reference numerals added, when considered with reference to appellant's Figures 3 and 4 below:

1. A system for maintaining an even level of water in a series of troughs 11, each having notched side walls and being spaced apart in the same plane that comprises

an elongated chamber 23,

an elongated reservoir 25,

a common wall 24 between said chamber and reservoir and defining holes 28 at spaced intervals therealong,

the wall 27 of said reservoir opposite said common wall defining a plurality of outlet parts 29 each communicating directly with an end of one of said troughs,

said ports generally conforming to the interior cross sectional shape of the trough served.

COPYRIGHT MATERIAL OMITTED

Additional structural features are recited in claims 2-4, but it will be apparent that we need not consider them.

Water issuing from a conduit 16 enters chamber 23 near the center thereof, flows through holes 28 in wall 24, and establishes a stable liquid level in reservoir 25. Reservoir 25 drains through wall 27 via ports 29 into the respective troughs 11 which spill water through notches 13 onto a heat exchange surface.

Appellant\'s application is assigned to Baltimore Aircoil Company, Inc.

THE REFERENCES

Engalitcheff, which issued prior to appellant\'s filing date, also is assigned to Baltimore Aircoil Company, Inc., and "relates to evaporative heat exchangers and in particular to improved apparatus for the distribution of water over a heat exchange surface." The specification states that:

there has been developed a system of troughs which can be filled to a predetermined level and which will spill water through notches * * *. Such * * * is disclosed in copending application S.N. 240,199 * * *. However, the apparatus of that patent application requires an overhead water supply to the troughs which * * * prevents the flow of air counter-current to the water. * * *

It is an object of the present invention to improve upon the system of application S.N. 240,199 by providing a trough water distribution system which * * * permits the water and air to flow in counter-current relationship * * *.

As illustrated in Figures 2-4 above, Engalitcheff discloses a water distribution system comprising parallel troughs 11 with notched side walls and an elongated water distribution box 21 at one end of the troughs. The water distribution box has an inlet conduit 15 and a series of orifices 22 for evenly distributing and metering the proper flow of water into each trough. A horizontal baffle 23 is provided in each trough; and the baffle has spaced orifices 24 to enable even water distribution in the upper part of the trough. Engalitcheff states that:

The feeding of water from the ends of the troughs 11 by the system of the present invention results in a very steady head of water in each trough throughout the length thereof even when that length is quite substantial. * * * There is the further advantage that this manner of feeding the troughs allows its usage with counterflow heat exchangers * * *.

Dargavel discloses a humidifier in which water is supplied to one end of a trough-shaped body. The water supply means, attached to one end of the trough-shaped body, comprises a shell-like body and a valve chamber which are separated by a common wall. Water enters the valve chamber through an inlet nipple and flows through an orifice in the common wall into the shell-like body and then into the trough-shaped body. As will be apparent, no further discussion of Dargavel is necessary.

THE REJECTION

In his first action, the examiner stated:

Claims 1-4 are rejected as being unpatentable over the disclosure in Engalitcheff in view of the disclosed chamber 16 and reservoir 12 of Dargavel under 35 USC 103. Engalitcheff discloses the claimed structure except for the use of a "chamber" as well as a reservoir. In view of the disclosed use of the combination of a chamber 16 and reservoir 12 in Dargavel, the use of a chamber in the device of Engalitcheff would be additive only, thus obvious in the sense of 35 USC 103.

In response thereto, purportedly under the provisions of Rule 131,⁴ appellant submitted his own affidavit, the pertinent passages of which read:

(4) That he Facius assisted in the development of the heat exchange apparatus which is illustrated and described in Patent No. 3,146,609, working with John Engalitcheff, Jr., * *;

(5) That his contribution to the apparatus illustrated in Patent No. 3,146,609 was the water distribution box;

(6) That he did not develop the trough structure shown and claimed in said patent, said trough structure being the sole invention of said John Engalitcheff, Jr.;

(7) That the application above identified was filed for the purpose of claiming his invention, that is the water distribution box. Accordingly, he knows that the water distribution box shown in Patent No. 3,146,609 was known to him before April 27, 1964, since it was his own design. Emphases added.

Appellant also submitted the patentee Engalitcheff's affidavit which stated:

That he Engalitcheff has read the Affidavit of Thomas F. Facius * * and that the statements of said Affidavit are to his personal knowledge true and accurate.

The examiner found the affidavits insufficient to comply with Rule 131; he then made final the aforementioned rejection.

In affirming the examiner, the board stated:

The bare allegation in appellant\'s affidavit that the water distribution box shown in the Engalitcheff patent is his contribution and was known to him prior to April 27, 1964, the filing date of the patent, and the bare statement in Engalitcheff\'s affidavit that the statements in appellant\'s affidavit are accurate are not a showing of facts within the contemplation of Rule 131(b). * * * Appellant further contends that the Engalitcheff patent constitutes in effect appellant\'s own publication of the water distribution box shown but not claimed in said patent and, accordingly, he does not have to show completion of the invention before his own publication date or to swear back of his own work. We are not impressed with this argument.

The board quoted from the examiner's Answer that:

The question of patentability here is whether Engalitcheff is available as a reference against the claims of appellant. Appellant has not contested the propriety of the rejection should Engalitcheff prove to be available as a reference against the claims.

Appellant having made no contrary allegation of record, we accept those statements; and the sole issue is the availability of Engalitcheff as a reference against appellant.

OPINION

Although Engalitcheff has no claim to the water distribution box per se,⁵ representative claims 1-3 show what he did claim as his invention:

1. In an evaporative heat exchanger including a heat exchange region and means to pass air upwardly through said region, the improvement that comprises a plurality of generally U section troughs arranged in spaced relation above said region, each trough having V notches in a side wall, means to flow water into said troughs in a direction generally parallel to the longitudinal axis thereof, and means within each trough to maintain a constant level of water throughout its length whereby the flow from all the notches will be substantially equal. Emphasis added.

2. In an evaporative heat exchanger including a heat exchange region and means to pass air upwardly through said region, the improvement that comprises a plurality of generally U section troughs arranged in spaced relation above said region, each trough having V notches in a side wall, means to supply equal volumes of water to one end only of each of said troughs, and means within each trough to maintain a constant level of water throughout its length whereby the flow from all the notches will be substantially equal. Emphasis added.

3. In an evaporative heat exchanger including a heat exchange region and means to pass air upwardly through said region, the improvement that comprises a plurality of generally U section troughs arranged in spaced relation above said region, each trough having V notches in a side wall, a distribution box having orifices therein each communicating with a trough, means to maintain a predetermined head of water in said box, and means within each trough to maintain a constant level of water throughout its length whereby the flow from all the notches will be substantially equal. Emphasis added.

As there is no double patenting rejection of record, this is only relevant in regard to the consistency between the aforementioned affidavits and Engalitcheff's patent claims and oath.

Engalitcheff contains no reservation clause since it is prohibited by Rule 79,⁶ and, of course, there could be no...