Application of Thorington

• Decision Date: 26 November 1969
• Docket Number: Patent Appeal No. 8188.
• Citation: 163 USPQ 644,418 F.2d 528
• Parties: Application of Luke THORINGTON, Gerald Schiazzano and Joel Shurgan.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

163 USPQ 644, 418 F.2d 528 (1969)

Application of Luke THORINGTON, Gerald Schiazzano and Joel Shurgan.

Patent Appeal No. 8188.

United States Court of Customs and Patent Appeals.

November 26, 1969.

Gordon D. Coplein, New York City, attorney of record, for appellants.

Joseph Schimmel, Washington, D. C., for the Commissioner of Patents. Fred W. Sherling, Washington, D. C., of counsel.

Before RICH, Acting Chief Judge, McGUIRE, Judge, sitting by designation, and ALMOND, BALDWIN and LANE, Judges.

ALMOND, Judge.

This is an appeal from the decision of the Patent Office Board of Appeals, adhered to on reconsideration, affirming the examiner's rejection of claims 1, 6, 7, 9, 15, 24, 26, 27 and 28¹ in appellants' application² on the ground of double patenting. One claim has been indicated to be allowable.

The invention relates to a noncircular cross-section fluorescent lamp tube and resides particularly in providing the usual generally cylindrical envelope of a fluorescent lamp with one or more grooves or deformations which are rotated around and along the envelope's longitudinal axis in a curved path of finite radius. In the preferred embodiment of the invention, shown in Fig. 1 below, the curved path is a helix which is continuous and extends substantially along and around the entire length of the envelope for more than one full turn of a helix.

The specification points out that the invention may be utilized with various types of fluorescent lamps having different radiating materials, tube materials, starting gases, phosphors and types of electrodes, and notes that types of phosphor coatings and electron emissive filament-cathodes are well known. The lamps of the present invention are said to possess several significant electrical operating advantages as well as several mechanical advantages, not the least of which is increased radiation efficiency due to the increase of are stream length because the arc discharge will follow a helicoidal path which when stretched out is longer than the physical length of the envelope itself, resulting in increased lamp voltage gradient.

Claims 1 and 9 are reproduced as being illustrative:

1. An electric discharge lamp comprising an elongated envelope of generally tubular shape, electrode means mounted within said envelope and an ionizable medium contained therein for producing an arc stream when an electric potential is applied across said electrode means, said envelope being formed with two indentations therein, said indentations being spaced from each other and formed along said envelope in separate helical paths around and along the envelope longitudinal axis, each of said indentations being continuous and extending along the major portion of said envelope in its corresponding helical path.

9. A low pressure electric discharge lamp comprising an elongated, generally straight envelope of vitreous material of generally tubular shape, an ionizable medium within said envelope comprising an inert starting gas and a quantity of mercury and a pair of electrodes at opposite ends of said envelope to establish an arc stream discharge there between, the outer wall of said envelope having at least one deformation therein to produce a non-circular envelope cross-section in a plane generally transverse to the envelope longitudinal axis where a said deformation exists, a said deformation and the non-circular cross-section produced thereby being rotated on a path described by a helix around and along the longitudinal axis for more than one full turn of the corresponding helical path to thereby rotate said non-circular cross-section in a corresponding manner, at least a portion of the arc stream tending to travel the helical path of the non-circular cross-section.

While the claims differ in the language used to describe the tube configuration, claims 6 and 7 are similar to claim 9 in other respects. Claim 15 is also similar to claim 9 except that the "ionizable medium" is not specified as including inert starting gas and a quantity of mercury. Claims 24 and 26 additionally call for a phosphor, and claims 27 and 28, dependent from claim 26, respectively recite that the cross-section is symmetric and asymmetric.

The double-patenting rejections, as characterized by the examiner and board, are essentially as follows:

1. Claims 1, 6, 7, 9, 15, 24 and 26 to 28 stand rejected under 35 U.S.C. § 101 as not patentably distinguishable from the claimed subject matter of appellants design patent, more particularly claims 1, 15, 24 and 26 to 28 are rejected as patentably indistinguishable from the claim of the design patent while claims 6, 7 and 9 are rejected over the claim of the design patent in view of the disclosure of Lemmers.

2. Claims 7, 9, 24 and 26 to 28 are rejected for double patenting over the claims of the commonly-assigned Olsen patent in view of the disclosure of Ewest.

The references relied on are:

                    Thorington et al
                      (Thorington)            De. 198,268             May 26, 1964
                    Ewest                       2,009,223            July 23, 1935
                    Lemmers et al
                      (Lemmers)                 2,950,410          August 23, 1960
                    Olsen                       3,169,657        February 16, 1965
                

Thorington discloses the ornamental design for a fluorescent lamp, as shown thusly:

Ewest shows an early, conventional type of fluorescent lamp having a cylindrical envelope, inert starting gas, a quantity of mercury and electrodes.

Lemmers discloses a low pressure discharge fluorescent lamp whose ionizable atmosphere includes an inert starting gas or mixture of gases. The reference also shows a plurality of spaced indentations or "dimples" formed along straight lines parallel to the lamp's longitudinal axis resulting in an elongated tubular envelope of noncircular grooved cross-section. The "dimples" are staggered to produce a sinuous path for the arc stream.

Olsen discloses a machine for converting glass tubes of a type such as the enclosure for a fluorescent lamp into helicoidal formation and the tubes so formed. The subject matter of Olsen in question is Fig. 6 and claims 11 through 15.

Claim 12 of Olsen is illustrative and reads as follows:

12. An enclosure comprising a single thin walled glass tube having two helical grooves formed in its wall, each of said grooves being circumfer-entially spaced and comprising disconnected sections respectively lying on and longitudinally spaced along the same helix.

The board affirmed the double patenting rejections summarized above, finding first that:

Appellants\' departure is that appellants\' envelope instead of being a straight cylindrical tube as in Ewest or of a known non-circular cross-section that defines an elongated electron discharge path, as in Lemmers et al., takes the form of a straight tube having one or more helical indentations extending substantially the length of the envelope or at least of more than one turn of a helix.

Its rationale was explained thusly:

In our view, the granting of a second patent on the single feature of novelty of providing helical indentation in an otherwise conventional fluorescent lamp would constitute an unreasonable extension of the monopoly secured by appellants\' design patent.

That there would be an extension of the monopoly is clear since anyone wishing to make a fluorescent lamp by conventional techniques after the expiration of the design patent would still be confronted by the instant claims in a mechanical patent, so that the invention depicted in the design patent would still be unavailable to the public for many years thereafter, notwithstanding the expiration of the term of the design patent.

That this extension of the monopoly would be unreasonable is likewise clear for the filing of two patent applications was not the result of some administrative circumstance but manifestly was an effort by appellants to secure greater patent protection with two patents than either patent alone would give. The direct result of issuing two patents for the single inventive concept would be to circumvent the statutory limitation to a 14 year term for a designed patent and a 17 year term for a so-called "mechanical" patent.

The board's factual inquiry is also set out:

We find that the inventive concepts of the design patent and the double helical embodiment of the instant application are the same. Notwithstanding appellants\' argument that their design patent was granted solely on the outer appearance of their lamp envelope, apart from its structure and function, 35 U.S.C. 171 authorizes the granting of a design patent on the article of manufacture, not just on appearance. In the instant case the article of manufacture is a "fluorescent lamp", whatever connotation that term may have had at the time appellants invented the design thereon, not just the envelope or the "appearance" of one.

The term "fluorescent lamp" at the time appellants filed applications for the instant "mechanical" and their design patents had acquired a well understood meaning both in the dictionary and in the patent art, as the Examiner pointed out in his Answer, and such a lamp contemplated the various features of electrodes, ionizable gas and fluorescent coatings on the envelope which appellants here contend are the distinguishing features of the lamp of the instant application over those of the design patent. Furthermore the Lemmers et al. patent describes how noncircular cross sections of the envelope lengthen the discharge path within the lamp and the result in an increased efficiency so that appellants\' improvement thereover would be merely a different shape for this extended path that apparently will give only the same increased efficiency found therefor by Lemmers et al. Appellants have not called our attention to any comparative test data wherein appellants\' configuration of the envelope attains an improved efficiency over the configuration devised by Lemmers et al. On the contrary Lemmers et al.

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