William L. Hendrix v. David L. Ladd, Commissioner of Patents

301 F.2d 527

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 16, 1962
• Docket: 16347_1
• Status: Published

Opinions

WASHINGTON, Circuit Judge.

This is a patent case, under Section 145 of Title 35 of the United States Code. The Patent Office rejected plaintiff-appellant’s application for a patent, and the District Court denied relief. This appeal followed. The District Court and the Patent Office both were of the view that the application failed to define a patentable invention over the prior art.

Appellant’s application, Serial No. 250,003, deals with a means of electric power distribution. It describes a self-supporting aerial electric power distribution cable system adapted to carry at least 2,000 volts. In this system, as apparently in all other aerial cable systems of primary distribution lines, the electrical conductors are supported from, and also protected by, a strong steel wire or “messenger,” which is supported on poles.¹ *The conductors are situated beneath the messenger wire, where they are engaged at intermediate points between the supporting poles by insulating hangers (clamps) which are attached to and depend from the messenger wire. These hangers provide support for the conductors, as well as maintaining them in a predetermined and inflexible minimum-maximum spaced relationship. This arrangement permits considerable reduction in the thickness of the insulated sheath conventionally used on the conductors.² Appellant’s cable system, and most other aerial cable systems, have a distinct cost advantage (in most areas) over underground cable.

In recognition of these and other claimed advantages, Hendrix was granted a patent for “Aerial Cable,” No. 2,820,-083, on January 14, 1958. The specifications in No. 2,820,083 read in part as follows:

“The present invention provides an improved aerial cable in which insulating clamps are installed at regular intervals along the cable length intermediate the poles, which clamps are employed to position and space the ‘hot’ conductors, and to support them from the messenger. The wires of my improved cable are thus installed on and spaced between full voltage insulators throughout the circuit length, and do not require shielding.

* * % * *

“My novel aerial cable clamp is characterized further and in the present embodiment in that the conductor sockets 21, 22, 23 are equidistant and define more particularly an equilateral triangle, with the lowermost socket 23 vertical with messenger recess 20, and with intermediate sockets 21, 22 arranged laterally of the plate and spaced equally from the said recess 20 as well as from the lower socket 23.”

Appellant’s present application “aims to provide a novel self-supporting aerial cable system wherein a messenger or supporting strand carries one or more conductors in a calculated permanent and uniform mutually spaced relation.” This application seems to claim invention of the entire cable system. It is labeled as an application for a Self-Supporting Aerial Cable System, Method and Means. It can thus be differentiated from No. 2,820,083, which covers a particular cable, and especially a cable in which the aerial clamps utilize equidistant conductor sockets forming an equilateral triangle, with the lowermost socket vertical with the messenger wire.³ The elements of the system which appellant now claims are (1) a supporting messenger wire, (2) a spacing holder which fastens conductors at a predetermined distance from each other, and (3) conductors. “These main component elements * * *, messenger, conductors and spacing holder means, make up the novel aerial cable * * * regarded as a structural unit * -X- -X- ”

In order to determine whether this system was patentable, the Patent Office was required, of course, to examine previously granted patents. Vail Patent No. 279,289 relates to a telegraph or telephone line. The conductors, of copper, are suspended from, and supported by, iron or steel messenger wires. Supporting racks, suspended from the messenger wire at locations spaced between adjacent pairs of poles, support the conductors in a predetermined spaced relationship. Although the Vail Patent does not cover an electric power distribution system, we believe that the Board of Patent Appeals and the District Court were correct in finding the features of Vail to be obviously adaptable for electric power distribution. Fletcher Patent No. 770,278 discloses a rack for supporting a plurality of electrical conductors in a predetermined, spaced, insulated relationship. The Primary Examiner relied on both Vail and Fletcher in rejecting appellant’s claim.

In sustaining the Examiner, the Board of Patent Appeals cited five additional patents as prior art. Emmons Patent No. 1,538,428 was granted for insulating clamps for electric lines. Each clamp consists of a base portion for receiving a conductor and a key portion which clamps the conductor in place onto the base portion. The base may be secured to, or made a part of, an ordinary pole-line cross arm, thus holding the conductors and wires in a predetermined spaced relationship. Hobart Patent No. 2,167,510 deals with an electric power cable which includes three conductors in a single pipe or jacket. Insulating elements within the pipe hold the conductors in a spaced relationship, and the jacket is filled with an insulating gas. Because of both the spacing and the gas, the conductors require a relatively small amount of insulation. The Nightingale Patent No. 1,813,863 relates a line for distributing electrical power to lighting units. The line includes a messenger wire, electrical conductors, and hangers which are suspended from the messenger wire and hold the conductors in spaced insulated relationship. An electric power transmission line is covered by the Fennel British Patent No. 310,070. The conductors are supported from poles and spaced above each other in vertical alignment. At spaced locations between the poles, insulating bridge members are secured between each pair of adjacent conductors. Finally, the Swiss patent to Kunze, No. 63,677, deals with an electric power distribution line. Frame spacers are clamped to conductors at spaced intervals between the supporting poles and maintain the conductors in spaced parallel relationship.

In Esso Standard Oil Co. v. Sun Oil Co., 97 U.S.App.D.C. 154, 157, 229 F.2d 37, 40, cert. denied, 351 U.S. 973, 76 S.Ct. 1027, 100 L.Ed. 1491 (1956), this court said:

“[A] mere preponderance of the evidence is not sufficient with regard to invention; the Patent Office finding must be accepted if it is ‘consistent with the evidence,’ the Patent Office being an expert body preeminently qualified to determine questions of this kind.”

In our view, the District Court correctly held in this case that the Patent Office finding was “consistent with the evidence,” and should be sustained.

Affirmed.

1 . The poles are erected at regular intervals along the geographic terrain the aerial cable is to span. The messenger wire is connected to the topmost part of each pole, thereby forming a continuous line parallel to the ground.

2 . These hangers, constructed of insulating material, are each composed of two halves which, when bolted together, form a unitary gripping device designed both to encompass and be maintained by the messenger wire, and to encompass, support, and maintain the conductors in proper electrical isolation.

3 . The application now before us, No. 250,-003, was filed on October 5, 1951. The application in No. 2,820,083, was filed on Juno 2, 1955. We do not suggest that the granting of the latter application in any way prejudices the application in No. 250,003.