Brailsford v. Lavet

• Decision Date: 20 June 1963
• Docket Number: Patent Appeal No. 6874.
• Citation: 318 F.2d 942,138 USPQ 28
• Parties: Harrison D. BRAILSFORD, Appellant, v. Marius Jean LAVET and Jacques Jean Gustave Dietsch, Appellees.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

138 USPQ 28, 318 F.2d 942 (1963)

Harrison D. BRAILSFORD, Appellant, v. Marius Jean LAVET and Jacques Jean Gustave Dietsch, Appellees.

Patent Appeal No. 6874.

United States Court of Customs and Patent Appeals.

June 20, 1963.

Russell G. Pelton, New York City (Donald P. Gillette, New York City, of counsel), for appellant

Robert E. Burns, New York City (Edwin R. Hutchinson, Washington, D. C., of counsel), for appellees.

Before WORLEY, Chief Judge, and RICH, MARTIN, SMITH and ALMOND, Judges.

RICH, Judge.

This is an appeal by the senior party, Brailsford, in patent Interference No. 88,950 from the decision of the Board of Patent Interferences awarding priority to the junior party Lavet et al.

Brailsford is involved in the interference on his patent No. 2,719,944 issued October 4, 1955, on application Ser.No. 435,759, filed June 10, 1954, entitled "Commutatorless Direct Current Motor."

Lavet et al. are involved on their application Ser.No. 453,392, filed August 31, 1954, entitled "Clock Power-Device," and assigned to Societe Anonyme des Etablissements Leon Hatot, of Paris, France.

To facilitate an understanding of the issues presented by this appeal, we shall first discuss the Brailsford invention, a diagrammatic drawing of which appears below:

The device is a simple form of direct current motor consisting basically of three parts, a rotor, a stator, and a circuit including a transistor (two such circuits being shown) which takes the place of the commutator formerly used in d. c. motors. The stator includes two coils, a control winding and a driving winding both wound on the core structure of magnetizable material. The rotor is permanently magentized and rotates within the electromagnetic field of the core, generating an intermittent current in the control winding. These current pulses control the transistor, rendering it intermittently conductive. When conductive it acts as a switch to connect the driving winding to the power source, such as a battery. We will now explain the details shown in the diagram.

Clockwise rotation of shaft 12 and Alnico¹ disk 14 permits pole "N" of the permanently magnetized band 23 of disk 14 to pass near surface 16a. While pole "N" is closely related to surface 16a, lines of magnetic flux² pass primarily from pole "N" through portions 11a, 11b and 11c of pole piece 11 to pole "S" of magnetized band 23.³ As pole "N" crosses air gap 21, the direction of magnetic flux in portions 11a, 11b, and 11c of pole piece 11 abruptly reverses inducing an electromotive force (emf) in the coil 30,⁴ the direction of the resulting current being indicated by the arrow placed alongside this coil.⁵ This current renders the transistor 34 conductive, allowing current to flow in the battery circuit XX-XX-XX-XX (left portion)-37-38-34-39 in the direction indicated by the arrows.⁶ The flow of current through coil 25 generates a magnetic field in pole piece 10, the flux of which passes through portions 10b and 10a, gaps 18 and 17 and portion 10c of pole piece 10. The resultant effect of such a magnetic field is, as stated in appellant's specification, a "magnetization of the pole piece 10 in a direction to produce a clockwise torque on the Alnico disk 13, this torque resulting from the cooperation of the magnetization of the pole structure with the permanent field present due to the magnetization of the band 22 * * *." (Our emphasis.)

The torque applied to disk 13 is sufficient to rotate the assembly 13-12-14 sufficiently to allow the "N" pole of disk 14 to rotate clockwise beyond gap 20 of pole piece 11. This lattermost motion results in another reversal of flux in portion 11a of pole piece 11. In a manner similar to that already described with respect to coil 30, transistor 34, etc., current is now induced in coil 28 in a direction to render transistor 32 conductive, current therefore flows in battery circuit XX-XX-XX-XX (right portion)-35-36-32-39, and pole piece 10 is magnetized, resulting in an additional torque applied to disk 13 to rotate it clockwise.

It can be seen from the foregoing that (1) "There are thus two power pulses per revolution" in the above described device and (2) that these pulses will continue as long as the battery 40 supplies energy to the circuits.

Brailsford claims the above invention in a manner exemplified by claim 1 of his patent which reads as follows:

"1. A direct current electric motor comprising, in combination, a stationary electro-magnetic field structure, a permanently magnetized bar mounted for rotation within the said field structure, at least one driving winding on a core portion of said field structure, at least one control winding on a core portion of said field structure, and a circuit including a source of direct current, at least one transistor connected with its emitter-collector terminals in series with said driving winding, and its base terminal connected to said control winding, said transistor being rendered conductive by the current induced in said control winding in response to rotation of said bar to supply current from said source to said driving winding to thus produce magnetic pulses in said field structure for rotating said rotor bar." Emphasis ours.

Count 1 of the instant interference is identical with claim 1, supra, except for the above emphasized limitations therein referring to "a core portion of" the field structure. The omission of these limitations is in fact the sole distinction between claims 1, 2, 3 and 12 of the Brailsford patent, copied by Lavet et al. for interference purposes, and counts 1-4 of the instant interference.

The opinion of the Board of Patent Interferences begins by setting forth the subject matter of, and the parties to, the instant interference. It then states:

"Lavet et al. copied claims 1, 2, 3 and 12 of the Brailsford patent in modified form, omitting a limitation which has apparently been regarded as immaterial under the last sentence of Rule 205(a)."⁷

Lavet et al. do not consider the omitted limitations material; indeed they cannot if the instant counts are to serve as a basis for an interference between themselves and Brailsford as they have no disclosure to support the limitations. Brailsford, however, contends that such limitations are material and contends that the board erred "In holding that the counts of the interference are properly modified." The modification is "proper," of course, only where the limitation omitted is "immaterial." Under the present Patent Office Rules of Practice, the only construction we can logically place on this alleged error is that the board erred in implicitly finding an interference in fact between the parties.⁸

In considering the existence or non-existence of an interference in fact between the instant parties, the first consideration is whether the omission of the recited "core portion" from the claims of of the Brailsford patent⁹ results in a different invention being claimed. We think it does.

There is no...