« 이전계속 »
It is considered that the appellant's device, meritorious, no doubt, in the skill of its construction, embodies no exercise of the inventive faculty nor any change over the prior art not fully within the range of mechanical skill. There is, therefore, no room for the application of the doctrine wbich the appellant enunciates—that in cases of doubt as to the presence of invention that doubt should be resolved in favor of the applicant.
There is no occasion, therefore, in this case to lay down what is conceived to be the true doctrine upon this point, as it affects applicants for patents as distinguished from the holders of patents in their contention in the courts.
The decision of the Examiners-in-Chief is affirmed.
EX PARTE BOWMAN.
66 O. G., 1310.
Where there was nothing in applicant's world of fact existing at the time be took his patent upon which the alleged errors of judgment could have been based, Held that there was no inistake of fact and no mistake of judgment upon
facts that could be recoguized in an application for a reissue of his patent. 2. SAME-RESTORATION OF CANCELED CLAIM-EsTOPPEL.
Where the claim sought to be reissued is similar to one that was presented in the original application and rejectel by the Ottice and canceled by the applicant in order to obtain bis patent, Held that under such circumstances the applicant
is estopped from setting up snch claiın in an application for a reissue. 3. SAJE-RE-EXAMINATION-ANTICIPATION.
Where the claim in the reissne application is a substantial reproduction of a claim in the original canceled upon a reference, Held, upon re-examination of it, that the applicant acted rightly in judging that the claim theu presented was niet by the reference. APPEAL from the Examiners-in-Chief.
Reissue application of Frank Bowman, No. 416,980, filed September 26, 1892.
Messr8. Alexander I Duris for the applicant. SEYMOUR, Commissioner:
Appeal is taken from the decision of the Examiners-in-Chief rejecting the following claim:
In a book, the combination of an onter back, covers hingeil thereto by flexible connections, ud a stift' slightly-flexible immer back extending across the outer back and bring its longitulinal edges pressing against the slexible connections between the back and covers, sa il inner back being greater in width than the distance across the outer back, whereby when the book is opened or closail the tlesible connections will yiele ontwrılly amil permit the imer lek to partially straighten itself ip passing the center, subst:wtially its and for the purpose described.
The references are the following patents: Hoffmann, September 26, 1882, No. 264,878; Kinnard, March 20, 1888, No. 379,649; Rose, Juno 19, 1888, No. 384,933; Ranshaw, August 14, 1888, No. 387,917; Frey and Buscher, February 12, 1889, No. 397,848; Ries, July 9, 1889, No. 406,476; Metz, May 26, 1891, No. 453,123; Jewett, June 9, 1891, No. 454,003.
This is a broader claim than in the original patent. The original application for the patent contained a similar claim to that sought in this reissue, which was as follows:
1. In a book, the combination of an outer back and covers hinged thereto, flexible connections being formed between the covers and the back, a stiff flexible inner back greater in width than the distance between the edges of the outer back and having its edges bearing against the flexible spaces between the covers and outer back, as and for the purposes described, and signatures attached to the inner back, substantially as described.
The Examiner in the original case rejected this claim upon the patent to Huether, No. 375,488, dated December 27, 1887, and there. upon the applicant requested the Office to cancel the claim.
In seeking this reissue the applicant alleges that his patent is inoperative by an error that arose from inadvertence, because the specifi. cation erroneously described the operation of the invention and omits a clear statement of the function of the flexible connection between the covers and the outer back and in omitting the claim in question. De alleges that these errors arose by reason of the fact that neither the applicant nor his attorneys properly understood the operation of this invention, and remained in ignorance of its operation and scope until the recent construction of larger and more perfect books embodying the invention showed the operation more clearly.
A reissue may be hadwhenever any patent is inoperative or invalid by reason of a defective or insufficient specification or by reason of the patenteo claiming as his own invention or discovery more than be had a right to claim as new, if the error has arisen by inadvertence, accident, or mistake and without any fraudulent or deceptive intention; but the new patent must be for the same invention.
In Leggett v. Avery (C. D., 1880, 283; 17 O. G., 445; 101 U. S., 256) the Court says:
We consider it extremely doubtful whether a reissued patent can be sustained in any case where it contains claims that have once been formally disclaimed by the patentee or rejected with bis acquiescence, and he has consented to such rejection in order to obtain his patent. Under such circumstances the rejection of the claim can in no just sense bo regarded as a matter of inadvertence or mistake. Even thongh it was such, the applicant should seem to be estopped from setting it up on an application for a reissue.
In Topliff v. Topliff et al. (C. D., 1892, 402; 59 O. G., 1257;. 145 U. 8., 156) it is said, that the section of the Revised Statntes does not in terms authorize a reissne to enable a patentee to expand his claim, and that it was natural to conclude that the reissue of a patent for such purposes was not in the mind of Congress when it
passed the laws in question. “At all events," said the Court, (p. 354,) “ve think it elear that it was not the special purpose of the legislation on this subject to authorize the surrender of patents for the purpose of reissning them with broader and more comprehensive claims, althongh, ander the general terms of the law, such a reissne may be made when it clearly appears that an actual mistake has inadvertently been made * * * Now, whilst, as before stated, we do not deny that a clajm may be enlarged in a reissned patent, we are of the opinion that this can only be done when an actual mistake has occurred; not from a mere error of judgment, (for that may be rectified by appeal,) but a real bona fide mistako, inadvertently committed; such as a court of chancery, in cases within its ordinary jurisdiction, would correct." . .
In the case of Mahn v. Harwood et al. (C. D., 1885, 144; 30 O. G., 657; 112 U. S., 354) it is said:
A patent for an invention cannot lawfully be reissued for the mere purpose of enlarging the claim, unless there has been a clear mistake inadvertently committed in the wording of the claim, and the application for a reissue is made within a rea sonably short period after the original patent was granted.
In Dobson v. Lees (C. D., 1890, 569; 53 O. G., 1740; 137 U. S., 258) it is said:
The reissue cannot be permitted to enlarge the claims of the original patent by including matter once intentionally omitted. Acquiescence in the rejection of a claim; its withdrawal by amendment, either to save the application or to escape an interference; the acceptance of a patent containing limitations imposed by the Patent Office, whichi narrow the scope of the invention as at first described and claimed, are instances of such omission. * * * It is clear that the claim of this reiseno is not covered by the original patent, and it appears that before the issue of the latter it was passed upon and rejected; was withdrawn and erased; an interference was dissolved upon condition of the amendment; and the issne of the original letters was predicated upon its abandonment. There is no room for the contention that there was any inadvertence, accident, or mistake in the premises.
It clearly appears in tbis case from the express language of the appli. cant in his oath that wbat he now seeks in this reissue was not under. stood by either the applicant or his attorneys at the time he took out his patent, but that the subsequent working of the patent and the manufacture of larger books led to the more perfect apprehension of the invention and to this application for a reissue. Nothing, therefore, in his world of fact existed at the time he took out his patent upon which the alleged errors of judgment could have been based, and of course, therefore, there was no mistake of fact and no mistake of judg. ment upon facts that could be recognized in a court of chancery, or here in an application for reissue.
Another view of this case is equally fatal to this application. A sim. ilar claim in the original application was rejected on the patent of Iluether. The Examiners-in-Chief hold that this claim was met by Iluether. It appears equally to be met by Metz. Upon the citation of Huether in the original application upon which the patent issued it is considered that the applicant acted rightly in judging that the claim then presented was met by the reference, and that therefore it was his duty to cancel the claim, and that an appeal would have been fruitless.
The decision of the Examiners-in-Chief is affirmed.
EX PARTE THOMSON,
Decided December 30, 1893.
66 0. G., 1447.
CENTRIFUGAL PUMP-ANTICIPATION-LACK OF INVENTION.
Where the only differences between the pumps in the application and the references consist in mere variations of detail in the applicant's construction of the pump to adapt it to the particular uses he has in mind, Held that such differences do not show invention nor mechanical skill in advance of that revealed in the references.
APPEAL from the Examiners-in-Chief.
Application of Alexander Thomson filed November 20, 1891, No. 412,501.
Mr. W. A. Bartlett for the applicant.
The claims in this case were rejected by the Primary Examiner on references and his rejection affirmed by the Examiners-in-Chief.
The claims appealed are:
1. The centrifugal-pump wheel baving a driving-shaft, a disk attached to said shaft, a series of curved buckets connected to the disk near the edge thereof and on each plane face and leaving an opening between the ends of the buckets at the center of the disk, and a ring extending across the edge of each series of the buckets remote from the disk, substantially as described.
3. In a centrifugal pump, the upright pump-stock having a chamber at one side below the water-line, said chamber having an opening above and below and having a ring surrounding each opening, the outer edges of said rings extending toward each other, a driving-shaft extending into said chamber concentric with the rings, and a disk on said shaft having buckets curving outwardly from a circle some distance from the center of the disk and terminating at the outer edge thereof and between the rings on the casing, all combined substantially as described.
4. In a centrifugal pump, the upright pump-stock, the chamber at one side thereof, open above and below and of a width equal to the width of the pump-stock and opening into said stock, tbe full width thereof, the driving shaft supported on said stock, and the wheel attached to said shaft within the chamber and cousisting, essentially, of a disk and buckets on the upper and lower faces thereof, curving outwardly from a circle concentric with the disk and teriniuating at the periphery of the disk, all substantially as described.
The references cited are patents to Alden, February 1, 1859, No. 22,773; Duc, Jr., January 12, 1869, No. 85,802; Lebby, December 7, 1869, No. 97,655; British patent to Gwynne, No. 1248, of 1862.
The Examiners-in-Cliet rejected the four claims of this applicatiou. Appeal is taken from their decision in rejecting claims 1, 3, and 4, the second having been abandoned.
Centrifugal pumps of this general character are very old, and in Alden's case, a patent granted in 1839, substantially all the elements of the appellant's device are found. Alden laid claim to none of them separately, and could not, for they were all old then. Alden shows a
lieel with curved vanes upon both sides of the disk, receiving water through openings on either side at the center, revolving in a chamber conforming to the shape of the wheel, with a gradually-enlarging chan. nel in place of the channel of uniform width shown in the appellant's craving. There are no rings at the periphery of the wheel; but they are not essential either in this device or Alden's. The appellant com. ments upon the differences between the tiro constructions, and notes the fact that Alden has a hub and claims that his own construction shows none; but no hub is shown in Alden's other than the mere device to attach tlie disk to the shaft, and this is done, and must be done, in some forun by the appellant, since his disk is also attached to the shaft. Appellant also notes that Alden's wheel revolves vertically. True, it is so shown in the drawings; but this is not essential, nor is it adverted to in the specification, and his wheel may be operated with equal advan. tage by constructing it to revolve horizontally like appellant's preferable construction. It receives water on both sides of the disk and is balanced to the same extent and in the same manner as the appellant's.
Similarly the appellant argues upon other variations of detail in his own construction—the broad low opening from the wheel-cbamber to the stock, the indrawn edges of the stationary rings surrounding the wheel, the tangential curve of the buckets, the balancing of the wheel; but all of these features, or any of them in combination, are the plainest mechanical expedients for the adaptation of the pump to the particular uses the appellant has in mind.
Duc shows all the elements of claim 1, except buckets on both sides of the disk. Alden shows all the essential elements, including buckets on both sides of the disk, except the supporting-rings on the outer periphery of the buckets.
The special construction of the fourth claim presents no new elements, noue acting upon the others in a way different from the references, and none showing any contrivance in the direction of mechanical skill even in advance of that revealed in the references.
In view of the prior art as thus disclosed, whether considered broadly or by analysis of the special devices disclosed in the references, the appellant's (levice shows no invention.
The decision of the Examiners-in-Chief is affirmed.