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The appeal must be considered in connection with the claim allowed by the Board, which is as follows:
1. In a damper-regulator, the combination, with a liquid-containing chamber and a circulating system in which the same is located, of an expansion-chawber in said liqnid-containing chamber, a pipe leading from the same, a diaphragm over said pipe, operating-levers adapted to be moved by said diaphragm, a branch pipe leading into said pipe, a three-wray valve in' said branch pipe, by means of which air may escape from the expansion-chamber, an air-compressor communicating with the brauch pipe, and two valves by means of which the damper-regulator may be closed out of the circulation system, substantially as described.
The references are patents to Brown, November 27, 1860, No. 30,716; Davis, February 24, 1885, No. 312,825; Atsatt, July 2, 1889, No. 406,018; Powers, September 10, 1889, No. 410,717; Jewett, May 6, 1890, No. 427,327.
The appellant urges the allowance of the second claim as one affording better protection to his invention, in that it is not limited to defined means for increasing or decreasing the air in the expansion chamber.
The claim must be rejected upon either of two grounds: first, because it is so broad as to embrace the construction which is disclosed in appellant's Patent No. 427,327, dated May 6, 1890, which in this application is separately described, stated to be disclosed in his patent, then disclained in this application, and finally claimed in the claim iwder consideration; second, Atsatt in his Patent No. 406,018, granted July 2, 1889, covering a device for automatically regulating combustion in hot-water and lot-air heating apparatus, in lines 82–89, inclusive, after describing his own temperature-regulator having a fluid.containing chamber and a diaphragin arranged to be acted upon by the expansion of said fluid, which in turn through levers and chains actuates the damper, discloses all else covered by this claim except the defined means for increasing and decreasing the air in the chamber in the fol. lowing language:
If it is desired to regulate the temperature to a still lower degree, the chamber is charged through the stop-cock p with more than one atmosphere, when a very moilerate degree of heat will cause the dense air in the chamber to expand sufficiently to expand the diaphragm, and thus regulate the draft.
Atsatt does not define the means by which this increase of air may be effected; but it is common to use au air-pump for such purpose.
By the very liberal action of the Board the appellant has already been allowed a claim covering this defined means of increasing or decreasing the air in the chamber, and if there are other means intended to be secured by the appellant by this broad claim the disclosure of Atsatt in equally broad terms clearly anticipates it.
The decision of the Examiners-in-Chief is affirmed.
EX PARTE FERGUSSON.
Decided January 2, 1894.
66 0. G., 651. 1. ELECTRIC Gas-LIGHTING ATTACHMENT—LACK OF INVENTION.
Where the only difference between the attachments in the references and those in the claims resided in the particnlar means by which the attachments were secured in place for use and the means simply involved a selection for the purpose, Held that there was no invention in selecting the particular means employed by the applicant, regardless of whether his particular means had ever been used
to attach the device to its place or not. 2. SAME-LACK OF INVENTION AND ANTICIPATION, DIFFERENCE BETWEEX.
Complete anticipation is rare, and to reject a claim on the ground that it is substantially met by a reference is practically the same as to reject it on the ground of lack of invention in view of the reference, such differences as remain not involving invention. The two gronnds of rejection, as applied to this case, are the same subject-matter of thought viewed from different poiuts.
APPEAL from the Examiners-in-Chief.
ELECTRIC (LAS-LIGHTISTI ATTACHMENT. Application of Henry A. Fergusson filed September 8, 1892, No. 445,317.
TIessrs. Dodge & Sons for the applicant. SEYMOUR, Commissioner:
The claims appealed are: 1. An electric gas-lighting attachment for existing gas-fixtures, coinprising a block of insulating material adapted to fit directly upon the burner, an electromagnetic sparking device carried by said block, and a circuit closer or switch, in combination, said parts being adapted for application to and removal from the gas-fixture without removal, alteration, or special adaptation of any part of the fixture.
2. In combination with a gas-fixture, a sparking attachment applied to the burper and a circnit-closer applied to the key or cock, both of said parts being applicable to and removable from the fixture at will and without removing or in any manner altering any part of the gas-fixture.
3. In combination with a gas-fixture, a sparking attachment applied to the burner and a circuit-closer applied to the cock controlling said burner, both of said parts being capable of really application and removal without removing or affecting any part of the fixture.
4. In combination with the burner of a gas-fixture, a sparking attachment provided with a supporting block of insnlating material adapted to fit upon the burner and a clamping-screw for securing the same in place.
5. In combination with a gas-fixture and with a sparking attachment, a circuit closer and breaker provided with a spring-clasp for securing it to the key or cock.
6. In a gas-lighting attachment, the combination, with the key or cock, of a forked block H, adapted to fit upon the cock or key and provided with spring plates or wings to hold it in position thereon.
The references are patents to Smith, June 23, 1874, No. 152,427; Bogart, May 16, 1876, No. 177,459; Hinds, January 16, 1877, No. 186,343; McGowen, October 4, 1887, No. 370,801; Finck, February 7, 1888, No. 377,553; McGowen, August 21, 1888, No. 388,294.
Smo: Hind:0.801; F158,294
Electric gas-lighters applicable to gas-fixtures with but slight changes for holding them in place and with a circuit-breaker attached to the key are old and well known. There is nothing novel in this application, unless it be the means by which one part of the circuitbreaker is attached to the key and the other to the fixture. The applicant attaches one part of his circuit breaker to the key by clamping. McGowen does it by a screw. The applicant attaches the other part of bis circuit-breaker by a yoke and set-screw. McGowen does it by a spring attached to the gas-pipe by a screw tapped into the pipe. Should a purchaser of the appellant's device attach the block H to the gas-key by removing the threaded screw and washer, passing the screw through the block H, and replacing the screw, and should he then turn the yoke so that the wire m would make and break the circuit with the wire g in its new position, and should let the set-screw holding the yoke be screwed into a hole in the gas-fixture at that point, the device would then be adjusted and held in place on the fixture by the same means as in McGowen's device. There would be no difference in the mode of operation. It is true the circuit breaker in McGowen's device is in the gas-pipe circuit, while in the appellant's device it is in the wire circuit.
The case presents the question whether these means by which the gas-lighter is attached to the gas-fixture involve invention. The appro: priate insulation of the parts tends somewhat to obscure this question; but it cannot be claimed that the appellant's insulation presents any new features either in itself or in connection with any part. The block A is itself an insalating-block; but it required no invention to insulate in that manner; nor does this form of insulation appear to present any special advantages over that shown in McGowen. The attempt is made, however, to show that thermal insulation is important at this point, upon the assumption that the heat of the burner would destroy the helix; but the gas-burner is not hot, and the adjacent parts need no thermal insulation from it. The electrical insulation by the block A of insulating material does not appear to be of the importance claimed, except in case the particular sparking device described in the specification is used, its parts being not otherwise insulated; but since the purpose of the appellant is, as stated in his application, to attach any available lighter to any usual gas-fixture without change, and since his claimed novelty of construction is directed wholly to avoid changes, the case turns upon that one feature.
Recurring now to the question whether the means by which the gaslighter and circuit-breaker are attached to the gas-fixture involve invention, it will be seen that these means are not peculiar, but, on the contrary, are old and very familiar in the crudest mechanical arts. The elamp for the forked block H and the set-screw for the yoke and insu. lating-block A are not patentable in themselves; neither is the shape of the yoke and of these blocks, enabling them with the set-screws and spring-clamp to be used as means for fastening the device to gas. fixtures. It is considered that these old means of attaching one mechanical part to another, when used to attach a gas-lighting device to a gas-fixture, which had beeu attached to gas-fixtures before by other equivalent means, adds nothing patentable to the other contents of the application.
In claims 1, 2, aud 3 the circumstance that the parts are adapted for application to and removal from the gas-tixture without alteration of any part of the fixture is the only feature that distinguishes the claims from what is old. In claims 4, 5, and 6 the means by which attachment without alteration of the fixture may be made are specified with. out a description of what is accomplished by those means. All the claims therefore involve this one thing-attachment without alteration.
Since, therefore, when what is old is eliminated from this application, there remains nothing but the means by which one device is attached to another. Whether or uot this particular device las ever been attached to a gas-fixture by these means, it is considered that there is no invention in selecting these ineans for this purpose.
The appellant complains that the Examiner decided that the claims were met by the references, whereas the Examiners-in-Chief decided that there was no invention in what was claimed to be new in the device. Complete anticipation is rare. It usually happens that the Examiner considers the claim substantially met by the references, and that such differences as usually remain do not involve invention. The Examiner dwelt upon one aspect and the Board upon the other; but it is in this case the same subject-matter of thought viewed from different points.
It is not material whether the appellant was driven from his original position and adopted another; nor is there any ground for the claim that there is present here a desirable construction which had been sought or which makes a better, cheaper, or more efficient device. These are but the unsupported assertions of the brief.
The decision of the Examiners-in-Chief is affirmed.
EX PARTE THOMSON.
Decided January 19, 1894.
66 0. G., 653. 1. DIVISION-PROCESS AND PRODUCT.
Where a process and its product are claimed in one application the Office will not concern itself with the inquiry whether the article might be made by any other process or whether the process will necessarily result in the particular product for the purpose of determining whether division should be ordered
between process and product. 2. SAME-NEW PROCESS.
The above inquiry would be no guitle in the case where the process were new, as to which the Office could not say with certainty whether it must always result in the product.
3. SAME-NEW PRODUCT.
Similarly, in the case of a new article such rule wonil regnire tlie Office to solve the insoluble question whether the article might not be made by some other inethod not yet invented or discovered, or else when a known process had produced the article the order to divide would be followed by the rejection of
the claim for the article as old. 4. SAME-REASONS WHY Divisiox BETWEEN PROCESS AND PRODUCT BASED ON AN
INSPECTION OF THE PRIOR ART is OBJECTIONABLE. It has been the practice to require division upon an inspection of the prior art, which is only cursory. Should the applicant follow the intimation of the Office thus made and cancel one aspect of his claimed invention, and further, acting upon the intimation, should forbear to file a new application for the ele. ments canceled, he might lose, upon the suggestion of the Office, protection for a valuable invention. If, on the other hand, he should file a new and divisional application, and the cursory examination should turu out to be a correct disclosure of the prior art, and the process or its product, as the case might be, turn out to be old, that being the ground upon which division was ordered, the
applicant would have been required to file a fruitless application. 5. SAME-REASONS WHY A UNIFORM RULE IS MADE THAT DIVISION BETWEEN
PROCESS AND PRODUCT WILL NOT BE REQUIRED. Process and its product concern inventions which are so related that they may, at tbo option of the applicant, be placed in the same application, he taking all the risks of future difficulties in the courts, and it is generally thought to be the better practice to include them both in one application, since division between process and product may produce confusion in the arts and conflicting interests, as iu timated by the Court in Mckay v. Dibert, (C. D., 1881, 238; 19 0. G., 1351; 5 Fed. Rep., 587,) since no patent has been declared void by reason of the joinder of such claims, while many have been held to be valid, since manifest advantages would follow from one uniform rule as to division, and more important than all else, since division or joinder approaches, if it does not present, a question of right in the applicant to choose between two courses, both of which are open to him, it is broadly announced that division in such cases will not be required.
METHOD OF CONSTRUCTING COMMUTATORS FOR DYNAMOS OR MOTORS.
Application of Elihu Thomson filed January 24, 1891, No. 378,891.
Messrs. Bentley & Knight and Messrs. Bentley & Blodgett for the applicant.
This is a petition requesting the Commissioner to set aside a requirement of division by the Examiner between claims for the arttcle and claims for a method of producing that article.
The article is, broadly, a commutator composed of segments of metal separated by strips which are indestructible by the heat of molten metal and also insulating. The method covers, broadly, placing the insulating strips between holders, casting the metal about the pattern 60 Constructed, and finishing the casting, inclucling the embedded strips, into a cast commutator.