Application of LoPresti
| Decision Date | 13 July 1964 |
| Docket Number | Patent Appeal No. 7159. |
| Citation | 333 F.2d 932,142 USPQ 177 |
| Parties | Application of Roy F. LoPRESTI and Jerome C. Salmons. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Parker & Carter, Chicago, Ill. (James G. Staples, Murray A. Gleeson, Chicago, Ill., Spencer B. Michael, Washington, D. C., of counsel), for appellants.
Clarence W. Moore, Washington, D. C. (George C. Roeming, Washington, D. C., of counsel), for Commissioner of Patents.
Before WORLEY, Chief Judge, and RICH, MARTIN, SMITH and ALMOND, Judges.
Stripped of verbiage, the issue which emerges from the examiner's answer and the opinions of the board is the propriety of the rejection of the appealed claims1 as unpatentable in view of the Craggs and McCann U. S. Patent No. 2,773,257.2 We agree with the basic proposition that the appealed claims are unpatentable over the reference. The reasons assigned by the examiner for this rejection become confused in the 5 pages of the record devoted to the examiner's answer. The reasons assigned by the board for its affirmance of the examiner also become confused in the 24 pages of the record devoted to the board's opinions. We shall, therefore, in affirming the rejection endeavor so to state what we understand to be the basic reasons for the rejection as to eliminate such confusion.
The essential fact which underlies the present issue is that the appealed claims are directed to what appellants assert to be an improvement in the rope frame conveyors disclosed in the Craggs and McCann patent as the invention of Craggs and McCann. While the appealed application and the Craggs and McCann patent are owned by a common assignee, this fact, in view of the grounds on which we decide this case, has no significance.
Belt conveyors of the type here in issue are used for transporting discrete solid bulk materials such as coal. They consist of an endless belt supported on rollers which are carried by the sideframe structure of the conveyor. As distinguished from the rigid sideframe conveyors of the prior art, the conveyors here in issue are of the rope frame type in which flexible strands or ropes are suspended between support posts located on each side of the belt. The rollers which engage the underside of the belt and support the belt and the load carried thereon are connected with and supported by the flexible strand or rope sideframes.
Specifically, appealed claims 22-26 relate to the strand or rope sideframe conveyor shown in the Craggs and McCann patent, except that the number and spacing of the belt-supporting rollers in the appealed claims are particularly defined while the Craggs and McCann patent is not so limited. The claimed roller arrangement serves as a means by which the deflection of the conveyor belt is said to be controlled and limited to a predetermined amount, while retaining the elasticity and impact-absorbing characteristics of ordinary strand or rope sideframe conveyors.
The Craggs and McCann patent issued on their application whose effective filing date is two days prior to the filing date of appellants' parent application. It is, therefore, "an application for patent by another" and as such is prior art as expressly provided in 35 U.S.C. § 102(e).
At this point, however, the examiner and the board disagree as to what portion of the Craggs and McCann patent may be relied upon to support the rejection of the claims. The examiner's position, characterized by the board as being "in error," was that only the claims of the patent may be relied upon to support the rejection. The board, substituting a view for which no authority is cited, would predicate the rejection upon what Craggs and McCann "in fact" did.
Another fact which must be considered is that appellants have attempted to antedate the reference by affidavits under Rule 131 showing completion of their improvement before the filing date of the reference which contains a disclosure of their improvement.
As above indicated, there is no question but that the Craggs and McCann patent must be considered, initially, to be prior art under section 102(e). Appellants have also...
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...1975); In re Hellsund, 474 F.2d 1307, 1311 (CCPA 1973); Corning Glass Works v. Brenner, 470 F.2d 410, 419 (D.C.Cir.1972); In re Lo Presti, 333 F.2d 932, 934 (CCPA 1964). It does not matter as to which section or subsection of 35 U.S.C. §§ 102 and 103 the admission relates because what is de......
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...be the obviousness of the improvements, which is the same question presented by the double patenting rejection. See also In re LoPresti, 333 F.2d 932, 52 CCPA 75. 13 See In re Ward, 236 F.2d 428, 43 CCPA 1007, and Ex parte Lindeman and Youngs, 107 USPQ 331 (Bd.Appls.1955) although in the la......
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Corning Glass Works v. Brenner
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