APPLICATION OF AHLERT, Patent Appeal No. 8232.
| Citation | 165 USPQ 418,424 F.2d 1088 |
| Decision Date | 30 April 1970 |
| Docket Number | Patent Appeal No. 8232. |
| Parties | Application of Wilhelm AHLERT and Ernst Kruger. |
| Court | United States Court of Customs and Patent Appeals |
Bryan & Butrum, Roy W. Butrum, James E. Bryan, Washington, D. C., attorneys of record, for appellants.
Joseph Schimmel, Washington, D. C., for the Commissioner of Patents. Jack E. Armore, Washington, D. C., of counsel.
Before RICH, Acting Chief Judge, ALMOND, BALDWIN, and LANE, Judges, and RAO, Chief Judge, United States Customs Court, sitting by designation.
This appeal is from the decision of the Patent Office Board of Appeals which affirmed the rejection of all claims in appellants' application1 as unpatentable under 35 U.S.C. § 103.
The application discloses a technique for controlling the rate of cooling of a weld between two sections of railroad rail and the apparatus for accomplishing the method "without creating any disturbance in the railroad traffic" and "independently of the prevailing weather conditions." The controlled heat treatment provided is alleged to result in a tough, crack-free weld having reduced internal stresses.
Claims 1-6 are directed to the method, claim 1 being representative:
1. A method for the heat treatment of a rail weld while the rail is in service which comprises directing at least one flame toward each side of the rail over at least a portion of a zone between the rail foot and the rail head only, and adjusting the intensity of the flames and the burning time thereof in accordance with the heat treatment desired.
A preferred embodiment of the apparatus designed to carry out the disclosed technique is shown in the application drawing, figure 3 of which is reproduced below for illustration:
Claims 7-11 are the apparatus claims, the broadest of which, claim 7 states:
7. An apparatus for use in the heat treatment of a rail weld which comprises a hood adapted to enclose only the foot and web of a rail, and at least one burner mounted in the hood on each side of the rail.
Claim 9 provides that the hood be made in two parts, and claim 8 includes the removable cover. Claims 10 and 11 recite means for adjusting the burning time and intensity of the flames emitted by the burners.
The examiner finally rejected all of the claims as unpatentable under 35 USC 103 over a patent to Ronay.2 This reference discloses a portable furnace, made in sections in order to fully enclose two members ("such as pipe, tubing, bars, rails, etc.") (Ital. ours) to be butt welded together while providing the heat necessary for welding. The heating element, or muffle, of the furnace is made of combustible material. The supply of gases to the muffle may be controlled in order to regulate the rate of combustion and, thereby, the intensity of the heat and the burning time. It was considered to be obvious "in using the apparatus of Ronay" to enclose and heat only portions of the work piece. In the examiner's Answer, reference was made to a patent to Van Swaal,3 which discloses apparatus, in a shape similar to appellant's head cover, with flame providing means attached thereto for flame treating rail heads in order to harden the rail surface. The reference was cited as an "example of heating only a portion of a rail".
The board found "no reversible error in the conclusion of the examiner that the claims are unpatentable over the references." However, in doing so, it was found necessary to elevate Van Swaal to the status of a reference fully relied upon to support the rejection and to take "judicial notice" of certain additional facts. Breaking the claimed method down into separate elements, the board first took judicial notice of the fact "that it is common practice to post-head a weld after the welding operation is completed" and held that "to apply the heat to heat treat a weld does not distinguish patentably over Ronay, who applies heat to weld the parts together" or Van Swaal, who "shows applying heat to a rail to heat treat the rail." It was further stated "that since Van Swaal shows directing the heat over a particular portion of a rail, it would be obvious to one skilled in the art to direct the flame over any desired portion of a rail." Finally, judicial notice was taken "of the fact that it is old to adjust intensity of a flame in accordance with the heat requirements."
With regard to the apparatus claims, the board relied on Van Swaal in deciding that "to enclose a particular part of a rail and to direct heat thereto is without patentable significance." Further noting that the "removable cover" limitation of claim 8 was "without patentable significance" and taking judicial notice of "the fact that it is common practice to provide a weld with a cover during postheating," and incorporating "reasons pointed out in connection with claim 1," the board sustained the rejection of the claims drawn to the apparatus.
OPINIONAppellants' first argument on appeal emphasizes "two basic concepts of the present invention," the first being that the claimed invention "relates to an arrangement wherein the rails of a railway track are treated while in service," the second being "that only the zone between the rail foot and the rail head is heat treated" (emphasis appellants'). It is urged that none of the references relied upon shows or suggests these two "fundamental features."
Appellant also contests the conclusions drawn by the Board of Appeals from the facts judicially noticed and, in addition, attacks the propriety of the board's taking such judicial notice, urging that the facts are "not so notorious and well known that any court would be justified in taking judicial notice thereof."
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