Application of Boon

• Decision Date: 20 May 1971
• Docket Number: Patent Appeal No. 8398.
• Citation: 439 F.2d 724,169 USPQ 231
• Parties: Application of William BOON.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

169 USPQ 231, 439 F.2d 724 (1971)

Application of William BOON.

Patent Appeal No. 8398.

United States Court of Customs and Patent Appeals.

April 1, 1971.

Rehearing Denied May 20, 1971.

James M. Heilman, Heilman & Heilman, Washington, D. C., attorney of record, for appellant.

S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents. Jere W. Sears, Washington, D. C., of counsel.

Before RICH, ALMOND, BALDWIN and LANE, Judges, and NEWMAN, Judge, United States Customs Court, sitting by designation.

BALDWIN, Judge.

Boon appeals from the decision of the Patent Office Board of Appeals which affirmed the rejection of claims 1-16 in his application¹ for an "Air Conveyor System." No claim has been allowed.

THE INVENTION

The subject matter for which appellant seeks protection may best be understood by reading claim 1 (which is representative of one group of claims rejected on a particular ground) with reference to the following illustration from the disclosure:

Claim 1 reads as follows parenthetic material corresponds to the illustration shown above — paragraphing ours:

1. Improved pneumatic conveying system for bulky material comprising in combination,

(1) a plurality of spaced apart collecting stations 10 and 20 for a bulky material,

(2) a receiving station 30 for the bulky material,

(3) conduits 6 and 24 of a suitable width to convey the bulky material providing communication between said collecting stations and said receiving station,

(4) means blower 60 drawing on chamber 30, in conjunction with vents 5 and 23 for passing a conveying airstream through said conduits from said collection stations to said receiving station,

at least one of said collecting stations being characterized by having

(5) a holding area e. g. 40 defined by a duct positioned between,

(6) an exterior door 8, and

(7) an interior door 11 adjacent said conduit.

Dependent claim 2 typifies a second grouping for rejection purposes, and adds the following qualification to parent claim 1:

(8) automatic means are provided to open and close said interior doors only when all said conduits are free from other bulky material.

Various other claims recite the material to be conveyed as "trash" (claims 8 and 12) or "non-particulate items" (claim 16). The specification mentions soiled linen, laundry, linen, trash, and the like "such as accumulates in institutions such as hospitals and the like." Appellant's brief indicates that the "essence" of the invention is that "holding areas are provided at the different collecting stations to hold the material until it can be best handled by the conveying air system."

THE REFERENCES

Buzzell et al.² is drawn to "an apparatus for and method of conveying concrete or other material." Basically, what is disclosed is a system for conveying the output of a set of two concrete mixing units to a single material discharge outlet. This conveyor system is connected to a source of positive air pressure and other means (e. g. condensing steam) are used to aid in the maintenance of a pressurized system which is used to facilitate discharge of the material from the discharge line. In order to prevent loss of pressure when the material is initially made to enter the conveying system and also to provide for a practically continuous outflow of discharged material, the two concrete mixing units are operated and their contents added to the conveying system in alternating sequence, introduction to the pressurized discharge line being accomplished by means of a sliding valve arrangement between two hoppers which are alternately being filled with concrete. To further facilitate discharge and minimize loss of pressure, the hoppers leading to the sliding valve are not filled gradually but rather a "hopper within a hopper" is provided which has a counterweighted bottom panel which only opens when the first hopper is filled to a predetermined level.

Hughes³ is directed to a programmed system for removal and disposal of ash from coal boilers. The patent discloses a series of boilers each provided with a hopper and a motor-driven rotary feeder-gate which, when activated, deposits any ashes which may have accumulated in the hopper into a vacuum conduit for disposal. Means are provided for assuring that there is complete ash removal from one gate position before the next rotary gate motor in sequence is actuated.

THE REJECTION ON PRIOR ART

The Board of Appeals summarized the issues here as follows:

Claims 1, 4, 5, 7, 8, 12, 15 and 16 stand rejected as being unpatentable over Hughes in view of Buzzell et al., under 35 U.S.C. 103. The Examiner considers the rotary feeder (11, 12 etc.) at each station of Hughes as the equivalent of a double door in the claimed combination and takes the position that it would be obvious, in view of the Buzzell et al. showing of alternately opening double doors to prevent loss of vacuum, to substitute such doors for the pocket feeders of Hughes.

Appellant argues that neither of these references discloses a double door and neither is pertinent to appellant\'s disclosure even if they showed his exact structure, in that they are from a non-analogous art, stressing his large, open unobstructed duct between his doors, as compared with the rotary vane type feeders of Hughes, and the semi-liquid condition of the material fed in Buzzell et al., as contrasted with the bulky material fed in the instant case. He also argues in substance that the different structures of the two references render their proposed combination unobvious.

The board then went on to affirm the examiner and respond to appellant's arguments. What was said bears repeating:

We share the Examiner\'s view that Hughes\' rotary gate feeders are in the nature of double doors since adjacent vanes of each feeder between which the material to be fed is located isolate the hopper from the conduit. Said vanes are in substantially the same relation to the suction applying means as in the instant case, and the space between said vanes is a holding area and constitutes an air lock.

The type of doors and the size of the holding area are obviously dictated by the amount or the size of the material or materials to be conveyed. It cannot be validly contended that appellant is the first to convey bulky material. Even Webster\'s Unabridged Dictionary tells us of the "pneumatic dispatch: a system of tubes through which letters, packages, and related matter are sent by air pressure". As was stated by the Court in Crown Machine & Tool Co. v. KVP-Sutherland Paper Co., 297 F.Supp. 542 155 USPQ 309, at 317,

"Vacuums are used for moving many different types of materials and a mere change of usage is not the sort of nonobvious difference upon which a patent may be obtained."

It is manifest that where packages are to be transmitted there must be a sufficient holding area therefor and appropriately spaced inner and outer doors for the air lock. While a better example of an air lock with separate spaced doors than Buzzell et al. might have been cited, this reference nevertheless teaches the broad concept of this feature. We are of the opinion that only routine technical skill of persons having ordinary skill in the art would be required in adapting a pneumatic system such as illustrated in Hughes for the feeding of bulky articles, whatever their specific nature might be. Providing a downwardly inclined floor, as recited in claims 4 and 7, to facilitate feeding of the articles from the holding area to the feeding conduits, is an elementary expedient and the mounting of the exterior door on a wall of a building, as recited in claims 5, 15 and 16, is an obvious matter of choice, the night bank-depository being a common example of the latter.

For the preceding reasons, the rejection of claims 1, 4, 5, 7, 8, 12, 15 and 16 is sustained. Our amplified reasons in support of our affirmance is not a new ground of rejection. In re Krammes, 50 CCPA 1099, 314 F.2d 813, 794 O.G. 30, 1963 C.D. 354, 137 USPQ 60. In re Boyer, 53 CCPA 1497, 363 F.2d 455, 836 O.G. 776, 150 USPQ 441.

Appellant makes substantially the same arguments here as he did below but additionally objects to the board's "amplified reasons in support" of the affirmance as constituting a new ground of rejection to which he was denied the right to respond. With regard to the latter argument, while we find the cases cited in the board's opinion to be of questionable support, we nevertheless agree that no new ground of rejection was there put forward. Those "amplified reasons" do, of course, rely on additional facts, not previously in the record, of which the board took notice. However, we are satisfied from our review of the record that, even when such facts are included, the "evidentiary scheme" supporting the board's position on this rejection does not differ in substance from that of the examiner. The references to the pneumatic dispatch as defined in the dictionary and to the night bank-depository may, therefore, be said to have played the type of minor role which this court recently indicated was proper for facts which are judicially noticed. See In re Ahlert, 424 F.2d 1088, 57 CCPA 1023 (1970).

Ordinarily, citation by the board of a new reference, such as the dictionary in this...