Application of Jentoft

CourtUnited States Court of Customs and Patent Appeals
Citation392 F.2d 633,157 USPQ 363
Docket NumberPatent Appeal No. 7905.
PartiesApplication of Arthur Philip JENTOFT.
Decision Date18 April 1968

Harry B. Keck, Pittsburgh, Pa., 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 KIRKPATRICK,* Judges.

RICH, Judge.

This appeal is from a decision of the Patent Office Board of Appeals affirming the rejection of claims 3, 9, 13, and 14 of application serial No. 144,610, filed October 12, 1961, for "Extensible Plug Valve." In his brief, appellant "waives the appeal" as to claims 13 and 14 so as to them the appeal will be dismissed, leaving for consideration only claims 3 and 9.1

This is an obviousness-type double patenting case in which a terminal disclaimer has been filed and considered below. The sole ground of rejection is double patenting founded on certain claims of appellant Jentoft's patent No. 3,010,692, issued Nov. 28, 1961, on an application filed Nov. 20, 1959, copending with the application at bar from Oct. 12 to Nov. 28, 1961. The patent is not, of course, prior art. To support the double patenting obviousness contention, the following prior art is relied on:

                  Work             2,584,523     Feb.  5, 1952
                  Eisele (German)    800,228     Oct. 17, 1950

The Patented Invention

Broadly, the invention is a gas-flow control valve capable of remote control by fluid pressure which actuates the valve. More particularly, it is an air valve for ventilation systems. The patent discloses two embodiments both operating on the same broad principal but with differing structure. Reproduced below are Fig. 1, showing one embodiment, and Figs. 8 and 9, showing the other embodiment as well as the mode of operation.

Referring to Fig. 1, the air duct is 10 and has an outwardly flared horn 11 at its end where it would open into a room. Suspended in front of the horn by brackets 16 is a cone-shaped structure consisting of a base 14 and a perforate, rigid, stationary cone 15 of metal over which is mounted a conical membrane 19 of resilient, expansible material such as rubber. The membrane 19 is attached to the base in air-tight fashion by strap 29 secured in groove 28. Pipe 22 admits control air into the conical chamber for the purpose of inflating the membrane 19 to partially or fully close the annular passage between it and the horn 11 to control the flow of air through the duct 10.

A modified form, having the advantage of lighter weight, is shown in Fig. 8 wherein the baseplate 14 of Fig. 1 is omitted and the supporting cone 32 is made imperforate, having the air inlet 35 attached to and passing through it at boss 33. Fig. 9 shows, in connection with the Fig. 8 embodiment of the invention, how the expansible membrane operates to effect a valving action when it is inflated. (The Fig. 1 form inflates in the same way.) Dotted line 36a shows the valve partially closed, full line 36b shows it fully closed, and dotted line 36c shows how, on further inflation, the membrane is in contact with the horn over a substantial area. The disclosure of the patent is limited to these two forms of the invention and all of its claims are limited to a "conical membrane of resilient, expansible material" as the means for controlling the flow of air.

This is called the "balloon" type valve.

The Invention of the Application

In contrast with the balloon type valve of the patent, the valve of the application is called the "bellows" type. Fig. 1 is reproduced:

Instead of having an expansible membrane resting on a stationary cone and acting as a valve by being inflated, the invention of the application secures to the fixed backplate 20 a normally collapsed bellows 24, joined air-tight therewith and with a cone-shaped "plug" 22 attached to the other end of the bellows. This plug, as the specification says, "preferably is a hollow conical plug of relatively rigid material such as stiff rubber, sheet metal or plastic materials." Alternatively, it is of "thin resilient material such as rubber." Operation of that alternative is stated to be "similar in all respects to the operation of the preferred embodiment." Or the plug may be solid, "of lightweight plastic material such as rubber, foamed rubber, foamed polyurethane, and the like." Valve action is produced, upon changing the air pressure in the closed chamber formed by backplate, bellows, and plug, by axial movement of the plug as permitted by the bellows and shown in dotted lines illustrating the closed position. To prevent drooping of the plug when the bellows is extended, it is necessary to provide supporting means 46 which is shown above as consisting of a tube 48 fixed to the backplate at 49 and a rod 50 sliding in the tube and attached to the apex of the conical plug. Other supporting means such as lazy-tongs are disclosed.

It also appears that with this plug valve moving axially it is unnecessary to have the horn 11 and it has therefore been omitted from some claims. Without it, the plug would move in and out of the open or terminal end of conduit 10.

The Rejection

Claims 3 and 9 on appeal stand rejected on the sole ground of "double patenting over claim 5 of applicant's patent (3,010,692) modified either in view of (1) Eisele taken with Work or (2) Work take with Eisele." (Examiner's Answer.)

Work discloses a pressure relief valve for use in fluid pressure systems in which a fluid-pressure-actuated metal bellows raises and lowers a flat valve disk relative to its seat. Inside the bellows is a telescoping rod-and-tube guiding and aligning means.

Eisele discloses a condensate discharge valve built inside a common tee fitting, the side outlet of which is plugged. In the upper leg of the tee and operating downwardly a metal bellows filled with low boiling point liquid is mounted. On the lower end of the bellows is a closure cap carrying a conical plug. The lower leg of the tee is provided with a valve seat having an aperture cooperating with the plug to form a valve. When condensate surrounds the bellows it contracts and opens the valve to discharge the condensate and when steam surrounds the bellows it expands and closes the valve. It is cited for its disclosure of the conical shape of the plug and for its bellows actuation.

Claim 5 of Jentoft's patent reads:

5. A gas flow regulating valve for controlling the flow of gas from a conduit terminal, comprising an outwardly flared horn engageable in communicating relation at its narrow end with said conduit terminal, a base plate secured in spaced outer relation to the expanded end of said horn by means of spaced support arms extending from said base to the rim of said horn, a rigid, perforate cone extending from said base plate coaxially into said horn, a conical membrane of resilient, expansible material secured at its base to said base plate and extending coaxially into said horn and being in its relaxed condition spaced apart from the inner wall of said horn substantially overlying said rigid cone to provide an annular gas passageway leading outwardly from said conduit, said conical membrane and said base plate forming an enclosed valve operating chamber, and an inlet tube extending into said valve operating chamber to admit fluids thereinto whereby said conical membrane may be extended outwardly to constrict the annular space between said membrane and said horn. Emphasis added for reasons referred to later under "The Board Opinion."

As is evident, claim 5 recites the elements and functional relationships thereof present in the Fig. 1 embodiment of the balloon-type valve described above. It delimits, therefore, a rather narrow patent right to that specific valve — that is, the right to exclude others from making the valve of Fig. 1 of the patent.

The examiner's position on "double patenting" must mean that in his opinion the appealed claims delimit another potential patent right on a valve which, in view of the prior art disclosures of Work and Eisele, is merely an obvious modification of the patented Fig. 1 valve defined in claim 5, taking into account the nature of the distinctions the examiner saw between claim 5 and the appealed claims. The examiner expressed himself on obviousness as follows:

* * * it is the examiner\'s position that it would be an obvious expedient to a person having ordinary skill in the art to substitute the bellows 6 and conical plug 9 of Eisele for the rigid, perforate cone and overlying conical membrane of resilient, expansible material recited in lines 7-14 of claim 5 * * * since both the device of said claim 5 and of Eisele are pressure responsive valves.

That statement pertains to the obviousness not only of replacing the cone and membrane of the balloon valve with a bellows and conical plug but also mechanically arranging the same to operate by axial movement instead of expansion. As to adding the guiding means to keep the plug of the bellows valve in axial alignment during movement, the examiner continued:

Furthermore, it would be obvious to provide the device of claim 5 * * * as modified by Eisele with "an extensible alignment means" comprising telescopingly engaged "shafts" in view of the teaching of the use of such guide means * * * in the pressure actuated bellows valve of Work.

As to his alternative rejection on reversed application of the references, the examiner said:

Similarly, considering the second alternative, it would be obvious to substitute the bellows operated valve and alignment means shown in Work * * * for the expansible membrane of the device claimed in claim 5 of Jentoft * * * and to provide the valve of said device of claim 5 as modified by Work with any type valve head desired; such as, for example, the conical head of Eisele.
The Appealed Claims

To make the rejection fully intelligible, it must be related to the claims on appeal.

Claim 3 depends from...

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