Application of Byers

• Decision Date: 21 February 1956
• Docket Number: Patent Appeal No. 6180.
• Citation: 109 USPQ 53,230 F.2d 451
• Parties: Matter of the Application of Anna Rosalie Nelson BYERS, Executrix of the Estate of Laud S. Byers, Deceased.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

109 USPQ 53, 230 F.2d 451 (1956)

Matter of the Application of Anna Rosalie Nelson BYERS, Executrix of the Estate of Laud S. Byers, Deceased.

Patent Appeal No. 6180.

United States Court of Customs and Patent Appeals.

February 21, 1956.

COPYRIGHT MATERIAL OMITTED

Francis C. Browne, Washington, D. C. (George Lynn DeMott, Washington, D. C., of counsel), for appellant.

Clarence W. Moore, Washington, D. C. (S. W. Cochran, Washington, D. C., of counsel), for the Commissioner of Patents.

Before O'CONNELL, Acting Chief Judge, and JOHNSON, WORLEY, and COLE, Judges.

O'CONNELL, Acting Chief Judge.

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the rejection by the Primary Examiner of claims 2 and 3 of the appellant's application No. 192,579 for the reissue of patent No. 2,513,233 granted June 27, 1950, for "Multiple Jet Blasting Charge."

The appealed claims are as follows:

"2. A blasting unit for shattering rock masses with a minimum of lateral scattering, comprising a container made up of a coplanar circular base having a central inwardly deflected indentation defining a cavity of substantially less diameter than that of said base and leaving a wide annular work-engaging surface, said cavity being formed with two concentric downwardly diverging conical surfaces of revolution, one comprising a complete cone forming the apex of the cavity and having side-walls disposed at an angle of substantially 30 degrees with respect to said base, and the other surface of revolution forming a frustum of a cone connecting the bottom of the apex cone with said base and having its side walls, disposed at an angle of substantially 60 degrees with respect to said base, a shallow thick-walled dome-shaped top secured to said base and forming a umbrella-like blast deflecting surface embracing said indentation, an explosive charge filling said container, and a detonator in said top.

"3. A blasting unit for shattering rock masses with a minimum of lateral scattering, comprising a container made up of a coplanar circular base having a central inwardly deflected indentation defining a cavity of substantially less diameter than that of said base and leaving a wide annular work-engaging surface, said cavity being formed with two concentric downwardly diverging conical surfaces of revolution, one comprising a complete cone forming the apex of the cavity, and the other surface of revolution forming a frustum of a cone connecting the bottom of the apex cone with said base, a shallow dome-shaped top secured to said base and forming an umbrella-like blast deflecting surface enclosing said indentation, and an explosive charge filling said container."

The claims were rejected by the examiner as unsupported by the original disclosure and as unpatentable over prior art and also on the ground that appellant's reissue application is improper and fails to comply with the statute since the failure to obtain in the original patent the claims now sought by reissue was not due to inadvertence, accident or mistake, The examiner's first two grounds of rejection, however, were not sustained by the board and accordingly will not be considered here.

The device disclosed by the appellant's application is a blasting unit shaped to concentrate the effect of an explosive charge and to reduce lateral scattering. As shown, the unit may comprise a container for the charge having a flat base comprising an annular work-engaging surface in which there is a central cavity, the cavity including an inner conical portion having side walls disposed at an angle of about thirty degrees to the work-engaging surface, and an outer frusto-conical portion, adjoining the inner portion and having its side walls disposed at an angle of approximately sixty degrees to that surface. The diameter of the cavity is described as being about one-third of the diameter of the base.

While the final rejection of appellant's claims was entered prior to the time when the Patent Act of 1952 became effective, the case is now governed by the provisions of that act, and specifically by the first sentence of section 251 of the act, 35 U.S.C. § 251, which reads as follows:

"Whenever any patent is, through error without any deceptive intention, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Commissioner shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. * * *"

The issue to be determined here is whether the failure to obtain, in the patent sought to be reissued, claims corresponding to those involved in the present appeal was due to "error" within the meaning of the sentence just quoted. The use of the word "error" in that sentence instead of the words "inadvertence, accident or mistake," which appeared in the corresponding section, 35 U.S.C. § 64, Section 4916 R.S., of the patent statutes prior to the recodification of 1952, does not involve a substantive change, and the same type of error is necessary to justify a reissue after the enactment of the Patent Act of 1952 as before. Moist Cold Refrigerator Co. v. Lou Johnson Co., 9 Cir., 217 F.2d 39, 103 U.S. P.Q. 410; Riley v. Broadway-Hale Stores, 9 Cir., 217 F.2d 530, 103 U.S. P.Q. 414. Accordingly, decisions as to what constituted inadvertence, accident or mistake under the prior law are pertinent here.

The record shows that during the prosecution of the original application which matured into the patent here sought to be reissued, there was presented a claim numbered 20, corresponding exactly to claim 2 of the present appeal, except that the circular base member was described as "flat" instead of "coplanar" as in the appealed claim, and that claim 20 included a limitation that the detonator is "concentric with said conical surfaces of revolution," which limitation does not appear in appealed claim 2.

The Board of Appeals found that "coplanar," which means "lying in the same plane", is synonymous with "flat" in the claims here under consideration, and we agree with that conclusion. Appealed claim 2, therefore, defines the location of the detonator more broadly than did claim 20 as originally presented, but otherwise the two are identical in scope. Appealed claim 3 is similar to claim 2, but is broader in that it does not specify the angles of the conical and frustoconical surfaces of the cavity.

A comparison of the claims makes it clear that appealed claims 2 and 3 are drawn to the same invention as was original claim 20 of appellant's original application, and that they are broader in certain respects and not narrower in any respect than that claim. Accordingly the appealed claims, if allowed, would afford the appellant broader protection than would have been received if claim 20 had been allowed as presented instead of being restrictively amended.

Original claim 20 was amended by substituting "coplanar" for flat and by including a further limitation that the cavity was approximately one-third of the diameter of the base and, as so amended, it was allowed. While claim 20 was not technically canceled, the amendment of...