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Where the conditions of the original application require division instead of its amendment merely, to secure a patent embracing the additional claims, the rule is necessarily the same, as held in the case last cited ; and the new application dates back to the original one, securing to the applicant the benefit of a constructive reduction to practice as of that date. (Duryea v. Rice, C. D., 1907, 443; 126 O. G., 1357 ; 28 App. D. C., 423, 435.)
In distinguishing that case from the ruling in Bechman v. Wood the Court said:
In Bechman v. Wood, (C. D., 1899, 453; 89 0. G., 2459; 15 App. D. O., 484, 491,) the original specifications did not disclose the broad claim of the issue, and it was not made for nearly three years after filing, and after Bechman had entered the Office making a claim for another specific form of the generic invention; and it was said, on the authority of Railway Co. v. Sayles (C. D. 1879, 349; 15 0. G., 243; 97 U. 8., 554):
“But it was not competent for Wood so to alter his specifications as to interfere with other inventions made prior to the alteration."
Where, as in this case, the invention was shown in the original application, and the making of the claim involved no material alteration of the specifications, the rule in Bechman v. Wood, does not apply. (McBerty v. Cook, C. D., 1900, 248; 90 O. G., 2295; 16 App. D. C., 133, 138; Luger v. Brovoning, O. D., 1903, 593; 104 O. G., 1123; 21 App. D. C., 201, 205.)
Inasmuch as Dempster was first to conceive the invention, and since his original application, which was filed prior to von Recklinghausen's alleged reduction to practice, contained a full disclosure of the invention here in issue, it is clear that under the authorities above discussed the decision of the Examiners-in-Chief awarding priority of invention to Dempster was right. The decision is accordingly affirmed.
EX PARTE SEARS.
Decided July 7, 1909.
148 0. G., 279.
1. PATENTABILITY-DUPLICATION OF Parts.
The provision of two cranes in a boring-machine for the purpose of enabling the new work to be hoisted to position simultaneously with the removal of the completed plece Held to amount to a patentable improve
ment where the prior art shows only one crane. 2. SAME-APPEAL-PRESENTATION OF New CLAIMS.
The practice of submitting new claims for the original consideration of the Commissioner on appeal not approved. APPEAL from Examiners-in-Chief.
Mr. James W. See and Messrs. Brock, Beeken & Smith for the appellant.
BILLINGS, First Assistant Commissioner:
This is an appeal from a decision of the Examiners-in-Chief affirming the rejection by the Primary Examiner of the following claims:
1. A boring-machine comprising a body, a chuck mounted thereon for rotation on a vertical axis, a tool-bar mounted in the body and fitted for sliding motion in the line of the axis of the chuck, a first Jib-crane having its mast vertically pivoted on a vertical axis at one side of the chuck, a second jibcrane having its mast pivoted on a vertical axis at the opposite side of the chuck, hoisting and lowering mechanism at each of said cranes, a power device for the actuation of said hoisting and lowering mechanism, and coupling devices for connecting said power device with the hoisting and lowering mechanism of the two cranes alternatively or simultaneously, combined substantially as set forth.
2. A boring-machine comprising a body, a chuck mounted thereon for rotation on a vertical axis, a tool-bar mounted in the body and fitted for sliding motion in the line of the axis of the chuck, a first jib-crane having its mast vertically pivoted on a vertical axis at one side of the chuck, a second jib-crane having its mast pivoted on a vertical axis at the opposite side of the chuck, hoisting and lowering mechanism at each of said cranes, a power device for the actuation of said hoisting and lowering mechanism, and coupling devices for connecting said power device with the hoisting and lowering mechanism of the two cranes and adapted to hoist a load on one crane while lowering a load on the other crane, combined substantialy as set forth.
3. A boring-machine comprising a body, a chuck mounted thereon for rotation on a vertical axis, a tool-bar mounted in the body and fitted for sliding motion in the line of the axis of the chuck, a first Jib-crane having its mast vertically pivoted on a vertical axis at one side of the chuck, a second Jib-crane having Its mast pivoted on a vertical axis at the opposite side of the chuck, a chain and winding mechanism at each of said cranes, a driving-shaft, gearing connecting the driving-shaft idly with the chain and winding mechanism of both cranes, and clutches to serve in connecting said gearing operatively with the chain and winding mechanism of either two cranes, combined substantially as set forth.
The references are: Putnam, April 19, 1881, No. 240,458; American Machinist of January 21, 1888, illustration on page 5; catalogue of Pond Machine Tool Co., illustration on pages 28 and 30, Plainfield, N. J.
The invention is a boring-machine of ordinary type, provided with two hoisting-cranes, one on each side of the machine. These cranes are provided with coupling devices for independently connecting the cranes to a common source of power, so that the crane may be operated simultaneously in opposite directions. By means of this construction one crane may be used for raising an object to be acted upon by the machine while the article which has been previously operated upon by the machine is being lowered from it.
The references show a boring-machine provided with one crane. If the device claimed by the appellant covered nothing more than a boring-machine to which two similar cranes were attached, it is quite clear that the invention would not be patentable, for the reason that
it would cover only a duplication of what is shown in the prior art. It is believed, however, that applicant has done more than this and that claims 1 and 2 set forth his new construction with sufficient particularity to warrant the grant of a patent.
As stated by the appellant in his brief: With the old boring-machines provided with a single crane, the machine had to be stopped or allowed to run idle, while the hoisting chain or cable was attached to the completed piece of work, the work was lowered to the floor, the chain was connected to a new piece of work, and until the new piece of work was hoisted to position on the machine. In this way, a great deal of time was lost, as the machine was necessarily idle a good part of the time.
On the other hand, with the applicant's invention, practically no time at all is lost in the handling of the work, for while one piece is being bored, a new piece of work may be hoisted by one crane in position to be swung under the boring-tool, then when the boring is completed, the finished piece of work may be swung to one side by the second crane, thereby permitting the new piece of work to be swung to working position with practically no hiatus at all in the boring operation.
Taking this view, it is held that the inventor has made an advance in the art and that he is entitled to a patent therefor.
Two claims have been submitted with the brief, for which consideration is asked. The practice of presenting new claims for original consideration by the Commissioner is not approved. No good reason is seen for making an exception in this case, and therefore no comment is made upon the claims presented.
Claims 1 and 2 cover the invention in this case and may be allowed. Claim 3, however, sets forth nothing more than a duplication of what is shown to be old in the references of record.
The decision of the Examiners-in-Chief is reversed as to claims 1 and 2 and affirmed as to claim 3.
WILLIAMS v. WEBSTER V. SPRAGUE.
Decided October 2, 1909.
148 0. G., 280. 1. INTERFERENCE-MOTIONS TO DISSOLVE-RENEWAL Motions—APPEAL-PIECE
MEAL ACTION. Where a motion to dissolve embodying two grounds is denied transmis. sion as to both, Held that the grounds may not be separately prosecuted, one by direct appeal and the other by renewal motion and subsequent
appeal. 2. SAME-SAME-SAME-SAME.
The bringing of a renewal motion waives the right of appeal from the decision on the original motion. ON MOTION.
WIND-SHIELD. Mr. Albert H. Graves for Williams. Messrs. Gillson & Gillson for Webster. Messrs. Munn & Co. for Sprague.
BILLINGS, Acting Commissioner:
This case comes up on a motion by Sprague to dismiss two appeals of Webster's from decisions of the Examiner of Interferences refusing to transmit motions to dissolve.
The appeals arose in the following manner: Webster brought a motion to dissolve based on two grounds. The Examiner of Interferences refused to transmit this motion as to either of the grounds. Webster then brought a renewal motion for dissolution based on but one of the grounds before set forth, and as to this ground he made the motion more specific, with a view to overcoming the reason of the Examiner of Interferences for refusing to transmit it. The ground of this second motion was unpatentability of the issue over eight references cited, the subject matter of which was set forth at some length, and in conclusion it was said that reliance was placed on these references“ separately and conjointly.” This motion was con
lered by the Examiner of Interferences and denied transmission in so far as it depended upon the patents cited conjointly, because it was indefinite as to how the references were to be combined.
After this decision on the second or renewal motion, but within the limit of appeal set in the first decision, Webster took an appeal from the decision on the first motion in so far as it denied transmission on the ground not covered in his renewal motion.
A few days later he took an appeal from the decision on the second motion, in so far as it was against him. It is these two appeals which Sprague now seeks to have dismissed. He has brought separate motions for their dismissal, but these are in their nature alternative, for he urges, on the one hand, that the second or renewal motion was improper on account of the then pending original motion, and, on the other hand, that the appeal on the original motion was improper because that motion was, in effect, abandoned by the filing of the renewal motion. It will be readily seen that to sustain either one of these objections robs the other of its force. In short, it is clear that Webster is entitled to one of these appeals, and I believe equally clear that he is not entitled to both of them. To permit a party to prosecute separately, by renewal motions, one or more separate grounds of dissolution advanced in an original motion and then to appeal on the separate motions as they are decided against him would be to sanction a piecemeal procedure, which has been uniformly and properly condemned by the Office.
It becomes necessary, then, to determine which of the two appeals is valid. The Encyclopaedia of Pleading and Practice (vol. 14, pp. 191, 192) states as follows:
Obtaining leave to renew a motion bas been held to waive the right of appeal from the first order, and it is clear that an actual renewal of the motion is such a waiver. (Citing authority.)
Webster's renewal motion accordingly amounted to an abandonment of his right to appeal on the original motion. It is clearly equitable that it should be so construed; otherwise a party might seek the same relief by several collateral proceedings, which would work an unnecessary hardship on the other parties.
There appears to be no authority for the contention of Sprague that the renewal motion was improper because of a contemplated appeal upon the original motion, which appeal was, in fact, subsequently taken. The authority above quoted states further, on page 192:
The pendency of an appeal from an order is no bar to an application for leave to renew the motion upon which the order was founded.
It is held, therefore, that Webster's appeal based on his original motion is out of order and that the appeal based upon the renewal motion is proper. The former appeal is accordingly dismissed. The latter will be considered at the time for which the hearing is noticed.
1. INTERFERENCE-PRIORITY-RIGHT TO MAKE THE CLAIMS—DIFFERENCE IN
DISCLOSURE. Where the terms of the claims in issue are found to apply aptly to the structure of a party to the interference who has copied them from the patent of the other party, Held he has a right to make the claims even though his disclosure embodies an element the use of which it was the expressed purpose of the patentee to render unnecessary by the structure particularly
referred to in the claims. 2. SAME-SAME-SAME-DIFFERENCE IN TERMINOLOGY. Where the interference involves a structure creating a “main
and a “ leakage” flux, it is immaterial for the purposes of the interference that the flux described as the “main flux” by one party is called the “leakage
flux” by the other, and vice versa, in their respective specifications. APPEAL from Examiners-in-Chief.
Mr. Albert G. Davis for Pratt.
Messrs. Spear, Middleton, Donaldson & Spear for de Ferranti and Hamilton.
BILLINGS, Assistant Commissioner:
This is an appeal by de Ferranti and Hamilton from the decision of the Examiners-in-Chief affirming the decision of the Examiner of Interferences awarding priority of invention to Pratt.
This interference involves the application of Pratt, which was filed April 20, 1904, and the patent to de Ferranti and Hamilton,