In re Reuter

• Decision Date: 18 June 1981
• Docket Number: Appeal No. 80-604.
• Citation: 670 F.2d 1015
• Parties: In re James D. REUTER, Edwin D. Vickery, and William J. Everett, Jr.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

670 F.2d 1015

In re James D. REUTER, Edwin D. Vickery, and William J. Everett, Jr.

Appeal No. 80-604.

United States Court of Customs and Patent Appeals.

June 18, 1981.

Joseph F. Nakamura, Sol., Thomas E. Lynch, Associate Sol., Washington, D. C., for Patent and Trademark Office.

Frederick A. Zoda, Trenton, N. J., atty., for appellants.

Before MARKEY, Chief Judge, and RICH, BALDWIN, MILLER and NIES, Judges.

MILLER, Judge.

This appeal is from a decision of the Patent and Trademark Office ("PTO") Board of Appeals ("board") which affirmed the examiner's rejections of claims 1 and 3-11 as unpatentable under 35 U.S.C. § 103 over Everett¹ in view of Berckmuller² and claims 2 and 12 over Everett in view of Berckmuller and Barish³ in reissue application serial No. 887,103, filed March 16, 1978, for "Flexible Gliding Wing." The board stated that its decision was reinforced by an affidavit of Poynter and a deposition of Vickery. We affirm.

Procedural History

Appellants' assignee, Pioneer Parachute Company, Inc., filed suit for infringement of Patent No. 3,524,613⁴ ('613) in the United States District Court for the District of New Jersey on May 19, 1976, identified as Pioneer Parachute Company, Inc. v. Para-Flite, Inc., Civil Action No. 76-0932. Several matters were raised by the defendant before the district court including prior art not previously considered by the PTO. After the reissue application was filed, the district court granted a temporary stay of proceedings on April 21, 1978, to permit consideration of the reissue application by the PTO. For purposes of the litigation, appellants' assignee agreed to be bound by the decision of the examiner. After final rejection of the claims by the examiner, an order dismissing the infringement suit with prejudice was entered on October 24, 1979. Although the protester, Para-Flite, Inc., actively participated in the reissue proceedings before the examiner under authority of 37 CFR 1.291, it withdrew from the reissue proceedings after the infringement suit was dismissed and before the appeal in this case was heard by the board.

The Invention

The invention relates to a self-inflating, flexible gliding wing ("wing") for lowering a suspended object through the air. It achieves the same result as a parachute but operates in a different way. A parachute slows gravitational movement by resistance of the air confined within the dome formed by the fabric. In contrast, the wing acts as an airfoil creating lift as the air passes across the wing, i. e., from the leading to the trailing edges of the wing surface. Figures 1 (a perspective) and 2 (a transverse or front elevation) are illustrative:

The self-inflating characteristic is attained by forming ram air scoops adjacent the leading edge (14) of the wing. The ram air scoops prevent inward buckling of the leading edge. The invention differs from prior art wings in its utilization of a more pronounced transversely arched contour, which is obtained by employing suspension lines (6) substantially equal in length in each transversely extending row of lines (e. g. 6a). According to appellants, the equal line length feature more evenly distributes the forces exerted on the suspension lines at the load points (12) and prevents downward buckling of the central portion of the wing. Claim 1 is representative:

1. A flexible and inflatable gliding wing comprising upper and lower flexible members which are connected to one another at points between the leading and trailing edges of the wing, the leading edges of said members, upon inflation of the wing, being spaced apart vertically to permit the entry of air into the space there between, suspension lines connected to said wing and extending downward from the wing in converging relation to at least one point of attachment to a load, said suspension lines being arranged in longitudinally spaced and transversely extending rows with the suspension lines in each transversely extending row being substantially equal in length and serving, during flight, to impart to said wing a contour which is transversely arched with the center of curvature of said arched contour being the point of attachment of said suspension lines to a load. Emphasis added.

The Prior Art

The evidence in this case is of several types, including patents, a publication, and statements made by way of affidavit and deposition. The '277 patent to Everett discloses a similar wing having ram air scoops to prevent downward buckling or inward folding of the leading edge and having suspension lines of varied lengths in transversely extending rows to impart a predetermined arched contour to the canopy in the transverse dimension. The patent to Berckmuller discloses a parachute designed to reduce operational altitude (that is, the altitude necessary for the parachute to open and function) by forming a multitude of minor parachutes or cells across the surface of a single canopy. The cells are connected to the user's harness by suspension lines of equal length resulting in a parachute having a substantially flatter dome than the usual inverted, cup-shaped parachute. The Barish publication discloses a wing having a three-lobed canopy comprising three transversely aligned sections. The front panels of each section are rolled under to form similar ram air scoops in the lower forward portion of the wing.

The Poynter affidavit was introduced during the reissue proceedings before the PTO. In pertinent part, Poynter states:

At Parachutes, Incorporated my primary responsibilies sic were sales and marketing. However, because of my interest in the design of parachutes and my responsibilities in marketing, I was intimately involved at Parachutes, Incorporated with the design and development of the parachute equipment to be marketed by Parachutes, Incorporated.

While at Parachutes, Incorporated I also designed and built numerous model gliding wing canopies which I tested in wind tunnels as well as by dropping the weighted models from elevated structures and airplanes.

By the summer of 1967, I had built no less than six complete model gliding wing canopies of various designs.

Sometime prior to October 26, 1966, I built and illegible fabric) consisting of a substantially air-foil shape with upper and lower surfaces, a closed trailing edge, six ribs dividing the space between the upper and lower surfaces into five cells and with openings at the leading edge. Attached to the underneath side of the canopy were catenary structures for line attachment to which were attached two rows of six suspension lines each. The canopy, catenary structures and suspension lines were arranged to impart a spanwise curvature to the canopy. Photographs of the model canopy are attached hereto as Exhibit A.

On or about October 20-25, 1966, I was requested to make three demonstration jumps of the Barish Sail-Wing at Wright-Patterson Air Force Base, Dayton, Ohio. Because of weather conditions, I made two of the jumps. At the time, I also took with me from Orange, Massachusetts, the model parachute shown in the photographs Exhibit A.

While at Wright-Patterson Air Force Base, I tested the model parachute by dropping it from the roof of a building numerous times at the parachute center in Xenia, Ohio. I observed that it flew and glided well.

Also while at Wright-Patterson, I tested the canopy in a wind tunnel. In fact, the photographs appearing in Exhibit A were actually taken of the canopy while under test in the wind tunnel.

The dates of the activities at Wright-Patterson Air Force Base and Xenia, Ohio, are established by my parachute jump log book, copy of which pertinent pages are attached hereto as Exhibit B.

At the time of the wind tunnel testing of my model canopy during October 20-25, 1966, it was well known that by increasing the aspect ratio of a gliding wing one could increase the performance, specifically the glide ratio.

It was known to me and others skilled in gliding wing type parachutes that there were three ways to maintain the spanwise integrity of higher aspect ratio non-rigid glide canopies:

(1) internal pressurization, such as that embodied in a double surface device (2) spanwise rounding of the flying surface in order to produce outward (wing tip to wing tip) forces; and

(3) angle the outboard catenary structures (below the lower surface) so that the leading edges of these sections are further apart than their respective trailing edges.

Some of the Barish Sail-Wings employed all three principles. My model wing shown in the photographs Exhibit A also employed all three principles.

Since Irvin obtained his patent(s) in the 1920's for his device for tensioning and marking parachute suspension lines in equal lengths, it was obvious to anyone in the industry that it is preferable from a manufacturing standpoint to use lines of equal length as opposed to lines of varying length, if at all possible, in manufacturing a parachute canopy.

Based upon the knowledge which I possessed and was possessed by others skilled in the art of gliding wing parachutes on or before October 20, 1966, the simplest and most obvious technique for imparting a spanwise curvature to a gliding wing canopy was to utilize equal line lengths for the suspension lines.

Vickery, a coinventor, was deposed during infringement proceedings before the district court and, on cross-examination, the following exchange was recorded:

Q. Did you give Mr. Reuter any input as to the exact degree of curvature or angle that should be assumed?

A. Only to the point that if you're going to change the lines, it sure would be nice if they're all the same length, because that would be a very convenient thing from the manufacturing standpoint and from the packing standpoint. So we decided to try that first and if that didn't give us any adverse problems, ... then that would be the thing to do.

Q. Do you recall whether it was you who said that?

A. I don't, but that's one of those things that would be a

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