In re Wagenhorst, Patent Appeal No. 3059.

• Decision Date: 24 April 1933
• Docket Number: Patent Appeal No. 3059.
• Citation: 64 F.2d 780,20 CCPA 991
• Parties: In re WAGENHORST.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

20 CCPA 991, 64 F.2d 780 (1933)

In re WAGENHORST.

Patent Appeal No. 3059.

Court of Customs and Patent Appeals.

April 24, 1933.

Church & Church, of Washington, D. C. (Melville Church and Clarence B. Des Jardins, both of Washington, D. C., of counsel), for appellant.

T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.

GRAHAM, Presiding Judge.

The appellant filed his application in the United States Patent Office on April 2, 1927, for a patent on improvements in automobile wheels. This application was stated to be a division of appellant's pending application, serial No. 41,835, filed July 6, 1925. Appellant claims the latter date as his effective filing date as regards this divisional application.

In the letter of the Examiner of May 23, 1928, Putnam, No. 1,612,050, of December 28, 1926, was cited as a reference. Thereafter appellant filed an affidavit under rule 75 of the Patent Office, which affidavit was intended to eliminate further reference to Putnam by that office. Attached to this affidavit were a number of sketches, bearing date from February 14, 1924, to February 29, 1924, and which it is said in the affidavit were delivered by appellant to his attorney and to a draftsman for the preparation of an application, serial No. 726,529, which eventuated in a patent duly issued to appellant on May 10, 1927, No. 1,628,626. This application was filed July 17, 1924.

Also attached to the affidavit were two drawings, named, respectively, Exhibit 4 and Exhibit 5, and as to which the affidavit states the following: "* * * That on July 16, 1924, he made sketches fully disclosing the invention set forth in said divisional application, Serial No. 180,479, and disclosed and explained said sketches on that date to C. B. Des Jardins, of the firm of Church and Church, his attorneys in that case, and that photostat copies of said sketches are attached hereto, marked Exhibit 4 and Exhibit 5; that he does not know and does not believe that the invention has been in public use or on sale in this country or patented or described in a printed publication in this or any foreign country for more than two years prior to the date of filing of his said application, Serial No. 41,835, of which the present application is a division, and that he has never abandoned the invention."

The said drawings each bear date of July 16, 1924.

The subject-matter of appellant's present application consists of a metal automobile wheel in which the brakedrum is utilized as a part of the body of the wheel; the demountable rim being detachably connected to such brakedrum by relatively short securing members or lugs, by means of bolts. The particular elements here involved lie in the rearward dishing of the central part of the brakedrum in order to strengthen said brakedrum against load strain, torque, etc., imposed upon it. There is also the further feature of a bolted connection between the spoke members and the brakedrum, in which the central portion of said spokes and the brakedrum are united in spaced relation to each other, so that the tension caused by such spaced relation will tend to prevent the nuts from becoming loosened upon said connecting bolts.

The rejected claims are as follows:

"1. A wheel comprising a brakedrum having the central portion of its side wall rearwardly dished, a tire-carrying rim, and means for detachably connecting said rim to said brakedrum, whereby load, sidethrust, and torque are transmitted through the drum."

"4. A wheel comprising a brakedrum having a cylindrical braking flange, a vertical portion extending inwardly from the front edge of said flange, and a central portion dished rearwardly from the inner edge of said vertical portion, a tire-carrying rim, a plurality of securing members rigidly connected to said rim, and means for detachably connecting the inner portions of said members to the vertical portion of the brakedrum."

"6. A wheel comprising a brakedrum, a tire-carrying rim, a plurality of sheet metal securing members rigidly connected to the rim and each having an inner portion seating on the periphery of the brakedrum, bolts carried by the drum and extending through the inner portions of the securing members, and nuts screwed on said bolts and clamping said inner portions against the drum.

"7. A wheel comprising a brakedrum, having a cylindrical braking flange, a vertical portion extending inwardly from the front edge of said flange, and a rearwardly dished central portion extending from the inner edge of said vertical portion, a tire-carrying rim, a plurality of sheet metal securing members rigidly connected to the rim and each having an inner portion seating on the periphery of the vertical portion of the brakedrum and engaging the rearwardly dished portion near its outer edge, bolts carried by the drum and extending through the inner portions of the securing members, and nuts screwed on said bolts and clamping said inner portions against the drum.

"8. A wheel comprising a brakedrum, a tire-carrying rim, a plurality of pressed metal securing members rigidly connected to the rim, the inner portion of each member engaging the brakedrum at radially spaced points and being spaced from the drum between such points, bolts extending through the drum and the inner portions of said members at the parts of the latter which are spaced from the drum, and nuts screwed on the bolts and engaging said securing members."

"10. A wheel comprising a brakedrum, a tire-carrying rim, a plurality of pressed metal securing members rigidly connected to the rim, the inner portion of each member engaging the brakedrum at radially spaced points and being spaced from the drum between such points, bolts extending through the drum and the inner portions of said members at the parts of the latter which are spaced from the drum, and nuts screwed on the bolts and having convex faces engaging concave recesses in said securing members."

The Examiner held that the affidavit was insufficient to meet the conditions of said rule 75, and that therefore the Putnam reference was still available. In coming to this conclusion, the Examiner called attention to the fact that the part of said affidavit which referred to certain sketches bearing date in February, 1924, was applicable only, by the terms of said affidavit, to the showings of the patent No. 1,628,626, of May 10, 1927, and that that portion of the affidavit referring to appellant's present application bore date as of July 16, 1924, a date approximately three months after Putnam's application was filed on April 7, 1924.

These circumstances, therefore, were taken by the Examiner as not a compliance with the provisions of said rule 75. The relevant portion of said rule 75 is as follows: "75. When an original or reissue application is rejected on reference to an expired or unexpired domestic patent which substantially shows or describes but does not claim the rejected invention, or on reference to a foreign patent or to a printed publication, and the applicant shall make oath to facts showing a completion of the invention in this country before the filing of the application on which the domestic patent issued. * * *"

The Examiner thereupon rejected the claims in issue on certain references cited.

The Board of Appeals coincided with the Examiner as to his construction of said rule 75, and, after considering the matter upon the references cited, rejected all the claims here in issue, and from that decision appellant has appealed.

The following references were cited by the Board of Appeals in the following language:

"The references relied upon are:

"Putnam, (Reissue) 15,358, May 16, 1922.

"Klocke, 1,394,739, Oct. 25, 1921.

"Trepier, 1,405,358, Jan. 31, 1922.

"Siddeley, 1,439,269, Dec. 19, 1922.

"Forsyth, 1,470,222, Oct. 9, 1923.

"Reid, 1,471,356, Oct. 23, 1923.

"Putnam, 1,612,050, Dec. 28, 1926.

"Trout et al., 1,627,717, May 10, 1927.

"Wagenhorst, 1,628,626, May 10, 1927.

"Wagenhorst, 1,679,453, Aug. 7, 1928."

In our opinion, the tribunals of the Patent Office were correct in their conclusions that the affidavit of appellant was not sufficient to eliminate the reference Putnam. It is immaterial in this case whether appellant completed the invention embodied in his patent, No. 1,628,626, prior to Putnam's invention of the same, and this is as far as appellant's showing as to his proceedings in February, 1924, may be held to extend. Appellant must claim that the alleged invention disclosed in his present application has inventive features over his patent, otherwise he has nothing upon which a new patent may issue. If, therefore, it is claimed that the present application is for a new invention, he must show by his affidavit that this invention was completed before Putnam's filing date. As has been shown, his affidavit discloses a date three months subsequent thereto, and thus the affidavit avails him nothing, and does not bring him within rule 75. If it may be said that by his affidavit he has shown that he completed his invention on July 16, 1924, and as to this we express no opinion, this date is, as we have said, subsequent to the Putnam filing date.

The Putnam patent is therefore available as a reference, and may be used, so far as it is applicable herein.

The Examiner also rejected appellant's "general combination" claims on the ground of double patenting, in view of his patent 1,628,626. The Board of Appeals did not specifically enumerate this ground of rejection; a general affirmance being made of the Examiner's decision.

As to this point, it is argued by the appellant that this ground of rejection is not now before the court, inasmuch as the Board did not refer to it. On the other hand, the Solicitor for the Patent Office argues that a general affirmance by the Board of the decision of the...