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In re Frank

123 F.2d 820, 29 C.C.P.A. 713, 51 U.S.P.Q. (BNA) 472, 1941 CCPA LEXIS 173
CourtCourt of Customs and Patent Appeals
DecidedDecember 1, 1941
DocketNo. 4514
StatusPublished
Cited by2 cases

This text of 123 F.2d 820 (In re Frank) is published on Counsel Stack Legal Research, covering Court of Customs and Patent Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Frank, 123 F.2d 820, 29 C.C.P.A. 713, 51 U.S.P.Q. (BNA) 472, 1941 CCPA LEXIS 173 (ccpa 1941).

Opinion

Hatfield, Judge,

delivered the opinion of the court:

This is an appeal from the decision of the Board of Appeals ot the United States Patent Office affirming the decision of the Primary-Examiner rejecting all of the claims — Nos. 4 to 7, inclusive, 9, 11, 16 to 22, inclusive, 24, 27, 28, and 29 — in appellants’ application for a patent for an alleged invention relating to improvements in circuit breakers.

Claim 4 is illustrative of the appealed claims. It reads:

4. A e'rcuit breaker including a movable contact, a stationary contact, a movable contact operating arm, a handle, and a latch for said arm, and a single spring for biasing the movable contact towards the stationary contact when the parts are in circuit closed position, and for biasing the movable contact away from the stationary contact when the arm is released by the latch, the movable contact and the arm being connected directly, at a point remote from the connection of the arm to the handle, so that arm and contact move together on all breaker operations, with said latch comprising the sole overload control for the breaker, the spring being connected to the contact operating arm free and independently of the handle, and also being operatively connected to the breaker frame, through a pawl which is held directly by the latch and through which the latch holds the arm. [Italic ours.]

The references are:

Bradshaw, 773,467, October 25, 1904.

Wurster, 1,270,356, June 25, 1918.

Anderson et al., 1,656,851, January 17, 1928.

Krantz, 1,726,233, August 27, 1929.

Thomson, 2,102,295, December 14, 1937.

A circuit breaker is a switch, manually and automatically operated, for intermittently opening and closing an electric circuit. It includes a movable contact, an operating mechanism so constructed as to cause the movable contact to move to and from a stationary contact, thereby intermittently opening and closing an electric circuit, and an arrangement for connecting the movable contact to the operating mechanism.

The appeal claims relate to an arrangement for connecting the movable contact to the operating mechanism “at a point [as stated in each of the claims] remote from the connection of the arm to the handle [of the operating mechanism], so that arm and contact move together on all breaker operations.”

The operating mechanism to which appellants’ movable contact is designed to be connected is disclosed and claimed in the reference [715]*715patent to Thomson. (It may be stated at this point that the Thomson patent not only discloses the operating mechanism to which appellants’ movable contact is arranged to be attached, but also discloses the invention defined by the appealed claims. This requires explanation. It appears from the record that as originally filed the application which matured into the Thomson reference patent was filed as a joint application by appellants and Thomson. Thereafter, appellants disclaimed the invention disclosed in that application so far as it related to the operating mechanism, but claimed that they were the inventors of the arrangement by which the movable contact was connected to such operating mechanism. Thereafter, a patent was issued to Thomson for the operating mechanism disclosed in that application.)

Appellants’ involved application was filed September 14, 1939, as a substitute for, or a division of (it is not important which, so far as the issues here are concerned), a prior application, Serial No. 59,631, filed January 17, 1936. No claim is made in this case that Thomson was the inventor, joint or otherwise, of the arrangement for connecting appellants’ movable contact to the Thomson operating mechanism. Owing to the fact that the Thomson patent issued with a full disclosure of appellants’ alleged invention — the arrangement for connecting .the movable contact to the operating mechanism— and as the Thomson patent and appellants’ application are owned by a common assignee, the record in the instant case is somewhat complicated and involved. However, the Solicitor for the Patent Office and counsel for appellants have simplified matters by pointing out that the issue determined by the Patent Office tribunals and the sole issue here is whether appellants’ structure and its connection to the Thomson device, as defined by the appealed claims, involves invention over claims 9 to 15, inclusive, in the Thomson reference patent in view of the other references of record. Why the Thomson patent was permitted to issue with a disclosure of appellants’ alleged invention is not explained. It is stated, however, in the brief of counsel for appellants, and not denied by the Solicitor for the Patent Office, that the patentee Thomson secured a reissue of his patent subsequent to the filing in this court of the appeal here under consideration, and that the subject matter defined by the appealed claims was entirely omitted from such reissue patent.

Claim 9, which is typical of claims 9 to 15, inclusive, of the Thomson patent, reads:

9. In a circuit breaker, a linkage comprising parallel elongated links, a movable connection which is pivotally secured to one link and is movable along and engages the other and which connects the links, said other and engaged link [716]*716being provided with resilient means disposed between an end thereof and the connection, holding means at opposite ends of said linkage for holding said linkage in normal position, and a contact operatively connected to the linkage, the linkage normally being so held by the holding means that the resilient means thereof is in a condition wherein it has potential energy stored therein, and constantly tends to vary the distance between the connection and one of the holding means and to shift the linkage, one of said holding means being manually movable, movement of that holding means releasing the linkage and permitting the resilient means to expend its potential energy and shift the linkage about the other holding means and at the same time to vary the distance between the connection and the first holding means, so as to provide a snap action movement of the linkage and a snap release of the contact.

No bolding 'was made by either of the tribunals of the Patent Office, nor is any claim made, here by the Solicitor for the Patent Office, that appellants’ structure or the arrangement by which it is connected to the operating mechanism of the Thomson device is defined in claims 9 to 15 of the Thomson patent. Eelative to those claims, the Primary Examiner said:

Claims 9 through 15 of the patent include contacts and the patentee Thomson must have had contacts of some hind in mind when he invented his operating mechanism. [Italics not quoted.]

It is evident, therefore, that the Thomson patent alone is not a sufficient basis for the rejection of the appealed claims.

For the purpose of clarity, we reproduce Figs. 4 and 5 in appellants’ application which disclose appellants’ mechanism and its connection to the operating mechanism disclosed and claimed in the Thomson patent:

[717]

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Related

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162 F.2d 994 (Second Circuit, 1947)
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123 F.2d 820, 29 C.C.P.A. 713, 51 U.S.P.Q. (BNA) 472, 1941 CCPA LEXIS 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-frank-ccpa-1941.