Application of Frederick A. Purdy

393 F.2d 1010, 55 C.C.P.A. 1163

• Court: Court of Customs and Patent Appeals
• Decided: June 20, 1968
• Docket: Patent Appeal 7860
• Status: Published

Opinions

KIRKPATRICK, Judge.

This appeal is from the decision of the Board of Appeals, affirming the examiner’s rejection of appellant’s claims 1-5 in his application entitled “Controls for Door-Operators”.¹ The main issue in the case is double patenting. No claim has been allowed.

The invention relates to a motor operated garage door in which a light cell, in the motor control circuit which operates the motor to open or close the garage door, is activated by the headlight of a vehicle approaching or leaving the garage.

Claim 1 is representative:

1. In a door-operator, a motor for driving the door, and controls for the motor, said controls including a filter for restricting passage through it of light rays having frequencies in the visible daylight region of the radiant spectrum, and for admitting passage through it of light rays having frequencies in a selected non-visible region of the spectrum; and a cell for receiving light rays passed by said filter, said cell restricting flow of electric current when said cell is dark and increasing said flow when said cell is lighted.

Claims 2, 3 and 4 are dependent on claim 1 and provide respectively for the addition of a suitable light source, incandescent light specifically and a filter in the form of a lens. Claim 5 (which is directed specifically to the operation of a garage door by the headlights of a vehicle), in addition to duplicating most of claim 1, provides for baffle partitions in the control capsule to prevent light rays other than those on a horizontal plane with the capsule from reaching the light cell.

While the basis of the examiner’s rejection is not entirely clear, the board’s affirmance of the rejection was based upon double patenting.

Subsequent to the board’s decision the appellant filed a terminal disclaimer to avoid the rejection of his application on double patenting. Upon reconsideration, the board refused to consider the disclaimer, pointing out that no good cause was shown why the terminal disclaimer was not filed earlier. We agree with the board in this regard. In re Heyl, 379 F.2d 1018, 54 CCPA 1608 (1967).

Purdy, 3,036,256, issued to the appellant, was copending with the application on appeal here. Its claims include a device for opening, closing and controlling the operation of a garage door by means of light rays from an outside source.

In the patent and the application, the objectives are the same. In both, the chief, if not the only, element of novelty is the means by which light rays reaching the light cell are restricted in order to prevent ambient light from the sun in daylight or at night from sources of light other than automobile headlights from reaching the cell. Claim 1 of the application is for substantially the same structure as that of the patent except that instead of a series of opaque horizontal baffles in the housing of the capsule, restriction of light rays is accomplished by a filter which admits infrared light but cuts off most if not all the light of frequencies in the visible region of the radiant spectrum. In claim 5 of the application, the baffles are retained with the filter as an added restricting element.

Mellvaine, 2,807,752, relates to a headlight control device for automatically dimming the headlights of a vehicle by light rays from the headlights of another vehicle approaching from the opposite direction. To minimize the effect of ambient light or light from sources other than the lights of the approaching vehicle on the control system, the patent utilizes a filter, positioned in front of a conventional light-sensitive element, which admits only light rays in the infrared range. Since approximately 90% of the light from automobile headlights is in the infrared range, very little of this light is excluded by the filter, while ambient light, having wave lengths for the most part outside the infrared region, is cut off, if not entirely, at least to a large extent.

The answer to the question of double patenting depends upon whether there is any patentable distinction between the claims of the application and those of the applicant’s patent or, put another way, whether the invention claimed in the application is obvious or unobvious over what was claimed in the patent.

Our conclusion is that the claims on appeal are directed to obvious subject matter when considering the invention claimed in the patent in connection with Mellvaine. Having learned from Mc-Ilvaine that a device intended to be operated by the headlights of an approaching automobile could be made to work efficiently by utilizing a filter (which cuts off all or most of the light coming to the device from sources other than automobile headlights), the step of including in an apparatus to operate a motorized garage door, a filter in place of or in addition to the baffles of the Purdy patent was a step which must have been obvious to any person of ordinary skill in the art involved. See In re Simmons, 312 F.2d 821, 50 CCPA 990 (1963).

It is well established that in a double patenting situation, prior art may be considered in order to determine whether the application claims a mere obvious variation of the patented invention but, as pointed out by Judge Rich in a concurring opinion in In re Zickendraht, 319 F.2d 225, 50 CCPA 1529 (1963), the ground of rejection for double patenting should be kept separate from Section 103 as a ground of rejection.

We, therefore, affirm the decision of the board on the ground of double patenting.

Affirmed.

1 . Serial No. 104,769, filed March 3, 1961.