Application of Wood, Appeal No. 79-517.

• Court: United States Court of Customs and Patent Appeals
• Citation: 599 F.2d 1032
• Docket Number: Appeal No. 79-517.
• Parties: Application of Edward Chalmers WOOD and James Frank Eversole.
• Decision Date: 07 June 1979

599 F.2d 1032

Application of Edward Chalmers WOOD and James Frank Eversole.

Appeal No. 79-517.

United States Court of Customs and Patent Appeals.

June 7, 1979.

599 F.2d 1033

Richard M. Beck, Wilmington, Del., attorney of record, for appellants, John N. Hazelwood, Robert W. Mayer, Daniel Rubin, Dallas, Tex., of counsel.

Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents, Robert D. Edmonds, Washington, D. C., of counsel.

Before MARKEY, Chief Judge, RICH, BALDWIN and MILLER, Associate Judges, and NEWMAN,^* Judge.

NEWMAN, Judge.

This is an appeal from the decision of the United States Patent and Trademark Office (PTO) Board of Appeals (board) sustaining the examiner's rejection under 35 U.S.C. § 103 of claims 36-38, entering a new ground of rejection under 35 U.S.C. § 102 of claim 36, and entering a new ground of rejection under 35 U.S.C. § 103 of claims 36

599 F.2d 1034

and 37 of application serial No. 587,599, filed June 17, 1975, for "Variable Venturi Apparatus for Mixing and Modulating Liquid Fuel and Intake Air for an Internal Combustion Engine," a continuation-in-part of application serial No. 241,755, filed April 6, 1972, application serial No. 151,373, filed June 9, 1971, and application serial No. 168,233, filed August 2, 1971, now U.S. patent No. 3,741,240. We affirm

Background

Appellants, Wood and Eversole, claim as their invention an improvement of the carburetor disclosed in a commonly assigned patent to Eversole and Berriman.¹ Both devices include a variable venturi.² They differ, however, in the means used to vary the venturi. In the Eversole and Berriman carburetor (Eversole I), the venturi flow area is varied by the up and down movement of a conically shaped pintle (26a) seated in the venturi throat (28a).³ In the claimed invention, the venturi is varied by moving the walls defining the venturi flow area.⁴ Appellants argue that the claimed invention is superior to Eversole I because it does not contain the pintle-type modulating

599 F.2d 1035

structure and therefore eliminates the problems of centering and vacuum pull on the pintle. However, appellants have not submitted any evidence of comparative testing between the two devices

Both the Eversole I patent and the application before us teach that maintaining the speed of the air-fuel mixture at sonic as it passes through the venturi throat over a wide range of intake manifold conditions reduces pollution from an automobile's exhaust. According to the inventors, the sonic velocity has the effect of more highly atomizing the air-fuel mixture which improves fuel utilization and thereby reduces the level of pollutants in the exhaust. Appellants offer as evidence of the nonobviousness of their invention an evaluation made by the Environmental Protection Agency (EPA) of a carburetor covered by claims 36 and 37, the Model 2 Dresserator. The EPA installed Model 2 Dresserators in a 1973 Chevrolet Monte Carlo and a 1973 Ford Capri, and found that both of the modified vehicles were capable of achieving the California 1975 interim emission standards. Further, the EPA noted that this finding was particularly significant since it was done without penalizing fuel economy and without the use of conventional emission controls such as oxidation catalysts.

The PTO made four separate rejections of the claims on appeal. Three rejections for obviousness involve a combination of the teachings of the Eversole I patent with the teachings of references disclosing conventional variable venturi carburetors, wherein the venturi is varied by moving the members which define the venturi flow area. Two of these, Bollee⁵ and the German patent,⁶ are used in a rejection of claims 36 and 37 because they show varying the venturi by lateral relative displacement of opposed venturi-defining pistons. Another reference describing the S.U. Carburetor,⁷ is used in another rejection of claims 36 and 37 because it shows venturi variation by movement of a piston toward and away from a venturi-defining wall. The last two references, Shaw⁸ and Hartshorn,⁹ are used in the rejection of claims 36 and 38 because they show venturi variation by sliding a piston or plunger between and in contact with venturi-defining walls. The fourth rejection is for anticipation and is limited to claim 36. It is the board's position that claim 36 is drawn so broadly that it would cover the prior art Winfield carburetor,¹⁰ a barrel carburetor wherein rotation of a cylinder throttle serves as a variable venturi.

Appellants argue before us that the obviousness rejections are improper because they combine nonanalogous references. According to appellants, in Bollee, the German

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patent, the S.U. Carburetor, Shaw, and Hartshorn, the velocity of the air-fuel mixture at the venturi throat is necessarily subsonic in order for the venturi to perform its metering function. Furthermore, appellants submit that references relating to subsonic variable venturi carburetors are nonanalogous to references relating to sonic variable venturi carburetors and hence not properly combinable. Appellants also contend that the PTO did not give appropriate weight to the favorable evaluation of the claimed invention made by an impartial third party, the EPA, as evidence of the nonobviousness of their...