author: ALMOND, Senior Judge.

text:
    Application of Robert G. BROWN.
    Patent Appeal No. 8887.
    United States Court of Customs and Patent Appeals.
    May 17, 1973.
    Rehearing Denied Aug 2, 1973.

      Timothy L. Tilton, James J. Hill, Chicago, Ill. (Dawson, Tilton, Fallon & Lungmus, Chicago, Ill.), attorneys of record, for appellant.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; Jere W. Sears, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, RICH, ALMOND, BALDWIN, and LANE, Judges.
   ALMOND, Senior Judge.

This appeal is from the decision of the Patent Office Board of Appeals sustaining the examiner’s rejection of claims 9 through 13, all the remaining claims of appellant’s application serial No. 403,522, filed October 13, 1964, entitled “Terrestrial Navigation System.” No claim has been allowed.

The invention relates to a terrestrial nagivation system that is capable of all-weather operation. An object as stated is:

* * * to provide a marine navigation system comprising an inertial system including a computer, a non-inertial velocity reference, and a third means such as [a] radiometric tracker or some other means of obtaining celestial angular measurements. The elements are interconnected in such a way that the integrated system is an effective, all-weather navigational apparatus with bounded errors, even in the event that only one celestial body may be tracked over a portion of a 24-hour cycle.

The application sets out “a block-diagram representation of the apparatus constituting the inventive system” in Fig. 1, reproduced below:

The application states:

In the drawing, it is seen that four natured components are employed in the basic navigation system. One is a pure inertial system which includes an inertial platform and sensors similar to that provided by the Autoneties Division of North American Aviation, Inc. under the designation N7.
Also provided is a computer which serves a multi-purpose role as a necessary part of the pure inertial system and as the data-processing center for all components of the system. This computer might take the form of a programmable, general-purpose digital computer, such as an IBM 7074 (but not necessarily as large physically or in memory capacity), with appropriate analog-to-digital interfacing to other components in the system where necessary. The computer must have the capability of solving a set of recursive equations according to the Kalman least-squares filtering theory, as will be explained presently. It also must have the capability of handling the other data-processing chores encountered in a conventional hybrid-inertial system application.
The inventive system also includes a celestial tracker which is capable of tracking one or more celestial bodies, and this might take the form of the radiometric sun-moon tracker supplied by Collins Radio Company under the designation AN/SRN-4.
The inventive system also includes a non-inertial velocity reference instrument which may, in a marine application, be an electromagnetic log similar to that currently used by the United States Navy.
Additionally, the system may receive from other sources, such as LORAN, discrete position information, and these pieces of information will be incorporated into [the] system through the computer.
All of system components just described need not be operative at the same time. For example, the invention described here is an effective navigational device if the tracker is operative for only a portion of a 24-hour day, as would be the ease in sun tracking.

The brief states that “the present invention corrects the data received from' the pure inertial system by estimating the propagation in time of the errors contained in that system and subtracting these error estimates from the signal outputs of the pure inertial system.” The manner in which appellant obtains the error estimates is best described in the brief as follows:

The present invention takes the output signals of the pure inertial system (with its attendant errors) and the output signals of the non-inertial sources of navigation information (with its own attendant errors); and it feeds this information into a data processor where a difference is taken between corresponding ones of the signals. Thus, a third set of signals is generated which is representative only of the difference between the errors in the inertial data and the errors in the non-inertial data. It is important to realize that the true navigation data, being identical for both inertial and non-inertial sources of like functioning will be subtracted out, so that only the difference in error signals is subsequently operated upon. These difference error signals are operated on according to least-squares digital filtering techniques which were developed by Kalman * * *, and hence referred to as “Kalman filtering”.

The application cites two published articles in connection with reference “to the recursive equations of Kalman’s least-squares filtering theory,” according to which the system is operated.

Claim 9 reads (with paragraphing as employed by appellant at oral argument) :

9. A system for terrestrial navigation comprising:
inertial means including a plurality of inertial sensors defining a platform, said sensors generating a first set of signals representative of navigation data in a reference co-ordinate frame;
non-inertial means for generating a second set of signals representative of navigation data having a predetermined relation to the navigation data generated by said inertial means;
signal processing means receiving said first and second sets of signals for generating signals representative respectively of estimates of corresponding sets of predetermined navigational parameters,
said signal processing means including
difference means for generating signals representative of the differences between corresponding parameters of said sets of navigational parameters,
said signal processing means further including
discrete-time recursive least-squares filter means receiving said difference signals for generating signals representative of estimates of errors in said first set of signals; and
correction means for correcting said first set of signals in response to said signals representative of the error estimates in said first set of signals to thereby provide a third set of signals representative of improved estimates of said navigational parameters,
said filter means characterized by a discrete-time linear state model
with uncorrelated stochastic driving functions,
said model representing the dynamic variation of the errors in platform orientation, position and velocity in said first set of signals,
said model further representing time-correlated errors in said inertial sensors and time-correlated errors in said first set of signals,
said filter means further characterized by defining a linear relation between the states- in said state model and said difference signals.

Claims 10-13 are either directly or indirectly dependent on claim 9 and, for reasons which will become apparent, require no further discussion.

The claims stand rejected for failure to comply with 35 U.S.C. § 112, particularly the first paragraph thereof, and as unpatentable over patents to Seliger et al. and Manoni. Since we find the rejection for failure of the application to disclose the invention as required by the first paragraph of section 112 must be sustained, none of the other rejections, which were in part alternative to this section 112 rejection, will be considered.

The examiner considered the application disclosure deficient in failing to set forth the manner of use of a general purpose computer, such as the IBM 7074, mentioned in the specification as used in “simulated test runs,” to “solve the set of recursive equations according to the Kalman least-squares filtering theory” to achieve appellant’s objectives, “particularly in view of applicant’s position that the novelty in the case is the manner of applying * * * [that] theory to information processing.” After specifically criticizing the sufficiency of the disclosure insofar as it mentions an electromagnetic log as a possible Non-Inertial Velocity Reference (see Fig. 1), the examiner stated:

It is noted, however, that the use of hollow rectangles to indicate structure of this device will be considered justified if applicant fully identifies a suitable prior art disclosure thereof, and enters a teaching in the specification of how to incorporate such device into the disclosed combination.

The examiner further stated:

The following are illustrative recitations in these new claims of “means” which are not thought to find adequate counterpart apparatus support in the specification:
In claim 9: — signal processing means
—difference means
—recursive least-squares filter means
—means for correcting said first set of signals.

Appellant responded by referring to a publication for a description of a magnetic log and by submitting two affidavits directed to the question of adequacy of the disclosure. One affidavit was that of the inventor Brown, a Ph.D. in electrical engineering, experienced in inertial navigation systems design work, and the other by Robert Á. Sharpe, who had a master’s degree in electrical engineering and was an experienced programmer of digital computers to solve scientific mathematical equations. These affidavits, which will be discussed in more detail later, were regarded by the examiner as failing to demonstrate that the application disclosure was adequate.

The board agreed with the examiner that the application did not comply with the disclosure requirement of section 112, including the position that the affidavits were not persuasive on that point.

Opinion

The only drawing in the application representing the apparatus claimed is the block diagram of Fig. 1, supra. Systems said to be suitable for certain of the blocks are identified broadly in the specification, as by reference to “a pure inertial system which includes an inertial platform and sensors similar to that provided by the Autonetics Division of North American Aviation, Inc. under the designation N 7” (emphasis ours) and “sources, such as LORAN,” of “discrete position information.” But no particular description of the various output signals from those systems or of the operative relationship between them to utilize such signals is set forth. In effect, the application might be regarded as leaving significant operative relationships to be determined from the mathematical equations set out, including those embodying Kalman’s least-squares filtering theory. While a “mathematical model” of the system utilizing a digital computer is discussed in the specification, the program for the computer is not disclosed even though such a program is said to have been actually prepared for the mathematical model. Under the circumstances, the examiner and board clearly had a reasonable basis for questioning the adequacy of the disclosure to enable a person of ordinary skill in the art to make and use a navigation system as defined in the claims. See In re Ghiron, 442 F.2d 985, 58 CCPA 1207; In re Marzocchi, 58 CCPA 1069, 439 F.2d 220, 169 USPQ 367 (1971).

Appellant argues that his disclosure was adequate, relying largely on the aforementioned affidavits of Brown and Sharpe as evidence. He regards the invention as involving two technologies, the art of navigation systems and the art of programming digital computers, and urges that the knowledge of persons skilled in both technologies is the criterion for sufficiency here, relying on In re Naquin, 398 F.2d 863, 55 CCPA 1428 (1968). Clearly, the examiner and the board accepted that criterion, and we do also. This itself points to a very significant distinction over Naquin where the examiner considered the sufficiency of the disclosure in terms of the person skilled in only one of the two technologies involved and the board, although disagreeing with that legal criterion, erroneously sustained the examiner on the basis that it could not say “as a matter of law” that the examiner erred.

The question here narrows down to whether the affidavits of Brown and Sharpe demonstrate that persons skilled in the two fields would have been taught to make and use the invention. The principal factual assertions of the affidavits relate to Sharpe’s writing, in 1963, a “computer program to perform the computations necessary to solve” a “set of recursive equations relating to what * * * Brown described as a navigational problem.” Brown stated that he met with Sharpe “on several occasions to discuss the problem with him and explain the definitions of the terms” and that “each of said meetings lasted for a period of not longer than about two hours.” Brown further asserted that, at the time of the meetings, he “had prepared a description of a solution of the problem which included substantially no information in addition to that set forth in * * * [his] application as filed.” Sharpe acknowledged receipt from Brown of “a set of papers describing the problem in mathematical terms. “He stated that he met with Brown “on several occasions * * * for brief periods to discuss the definition of terms used in * * * [the] set of papers” and that he worked “only from said set of papers and the information transmitted in said meetings.” Sharpe additionally stated that “the information conveyed to him via said set of papers and • said meetings with * * * Brown was substantially the same information as is disclosed in * * * [the present] application.”

Brown further asserted that “the level of skill of programming of scientific, mathematical problems prior to filing the instant application reached a relatively high degree of sophistication in mathematics as compared with most mechanical and other electrical arts.” He stated that the skilled programmer at the time typically had “a baccalaureate degree in engineering or mathematics,” that some had the “equivalent formal education required for a Masters Degree,” and that “such a person * * * would need no further disclosure [than the application] in order to enable him to solve these equations.” Brown concluded :

That, in his opinion, the implementation of such program to perform the computations defined in Equations (4)-(8) of the application was well within the skill of the art at the time of the invention; and that the disclosure set forth in said application as filed would enable a person skilled in the art at the time of invention to practice the invention.

We do not find the affidavits to overcome the objections properly raised as to the adequacy of the application disclosure by the examiner and board. The fact that Sharpe had actually produced a computer program, not disclosed in the application, to solve the recursive equations in the mathematical model does not demonstrate that the application disclosure would have taught a person of ordinary skill in the art how to make and use the claimed system. It is not factually established that Brown did not convey to him vital information in addition to that set out in the application. The affiants’ characterization of the information conveyed as “substantially” the same as that in the application amounts to the conclusions of the affiants without any revelation of the facts on which the conclusions were based. Certainly “several” meetings each lasting no longer than two hours, could have afforded an opportunity to convey additional information that was critical to an adequate disclosure without the affiants with their high level of scientific training actually recognizing it.

The assertion of Sharpe that no disclosure additional to that in the application would have been necessary to enable a person skilled in scientific programming to prepare a program to solve the recursive equations is primarily a matter of opinion tied into the ultimate issue. While we do not ignore that opinion, we do not consider it as significant factually as the more basic assertions, accepted by the court in Naquin, that “the average computer programmer is familiar with subroutines for running integration, addition, etc.”

Moreover, the deficiencies which the examiner and board found in appellant’s application were not based only on the failure to disclose the computer program used with appellant’s “mathematical model.” Thus the board stated:

* * * we note that the claims are not directed to a computer alone but to a system of apparatus that includes celestial, inertial and radio-metric units which must coact with and be accommodated by the computer into an operative system of apparatus. As we understand Appellant’s affidavits the programming effort alleged to be obvious was that of solving certain equations on a computer, not in a program which coordinated the various discrete units into apparatus that accepts physical inputs and yield physical outputs. In other words, Appellant’s asserted computer program is not coextensive with the scope of the appealed claims but is directed to the portion thereof which the Examiner has characterized as a “mathematical model.” Appellant’s contention that application to actual apparatus would be too costly is not convincing because the monopoly sought by the appealed claims is not of the solution, of a mathematical model but of an extensive installation for which the record presents no details of how this would be built nor any evidence that it would have been obvious to supply the missing parts of the system.

We consider that position sound and do not find that appellant has answered it. His disclosure is basically a mathematical analysis of a procedure suitable for use in an inertial navigational system which is blended with non-inertial sensing means. Its substance resembles more that in a theoretical thesis than in a description of an operative system. The most tangible disclosure is of a “mathematical model” of the system. While a successful mathematical model may well have value in developing a practical system, a discussion of such a model would not necessarily be adequate to disclose how to make the actual navigation system, particularly where there is so little description of the operative relationships of the elements as here.

Appellant cites In re Bernhart, 417 F.2d 1395, 57 CCPA 737 (1969), but that case does not establish any rule contrary to the principles applied here. No rejection for inadequate disclosure was before the court there. The board, an augmented panel including the three members involved here, did reverse a rejection for inadequacy of disclosure. However, the issues raised by such a rejection involve factual considerations which differ from case to case. Indeed, the court regarded the mathematical equations to be programmed in Bernhart to be simpler, and apparently therefore easier to program, than those of a prior art Taylor patent on which it sustained the rejection of certain of the claims.

Accordingly, the rejection of claims 9-13 for inadequacy of the application disclosure under the first paragraph of section 112 is affirmed.

Affirmed.

      . Appellant’s brief presents a description that is more informative in a number of respects than the application disclosure.

      . R. E. Kalman, “A New Approach to Linear Filtering and Prediction Problems,” ASME Trans., J. of Basic Engr., V. 82, pp. 35-45, Mar. 1960; and R. E. Kalman and R. S. Buey, “New Results in Linear Filtering and Prediction Theory,” ASME Trans., J. of Basic Engr., Mar. 1961, pp. 95-108.

      . No. 3,214,575, granted October 26, 3965 on an application filed September 34, 1961.

      . No. 3,342,982, granted September 19, 1967, on an application filed September 25, 1961.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WASHINGTON MANUFACTURING COMPANY, Appellant, v. BRAND AND PURITZ, Appellee.
    Patent Appeal No. 8964.
    United States Court of Customs and Patent Appeals.
    May 24, 1973.

      G. Cabell Busick, Mason, Fenwick & Lawrence, Washington, D. C., attorney of record, for appellant.
    Claude A. Fishburn, Orville O. Gold, Fishburn, Gold & Litman, Kansas City, Mo., attorneys of record, for appellee.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   PER CURIAM.

This is an appeal from the decision of the Trademark Trial and Appeal Board, abstracted at 168 USPQ 672 (1970), dismissing appellant’s opposition to the registration of DEE DEE DEB for “coats and suits for junior misses,” Application Serial No. 290,249 filed February 5, 1968. Appellant asserted that the mark so resembles its registered marks DEE CEE for “shirts, jackets, slacks, shorts, dungarees, and pajamas for men, women, and children,” Registration No. 791,077 issued June 15, 1965, and “DEE-CEE” for virtually the same goods, Registration No. 691,712 issued January 19, 1960, that there is a likelihood of confusion, mistake or deception within the meaning of § 2(d) of the Lánham Act, 15 U.S.C. § 1052(d).

The board concluded that when the marks DEE DEE DEB and DEE CEE are viewed in their entireties, the resemblance is not such as to reasonably lead to a likelihood of confusion. We agree with both the reasoning and conclusion of the board in this ease. The decision of the board is accordingly affirmed.

Affirmed.


author: BALDWIN, Judge.

text:
    Application of Walter JEANMAIRE.
    Patent Appeal No. 8925.
    United States Court of Customs and Patent Appeals.
    May 17, 1973.

      Burgess, Dinklage & Sprung, New York City, attorneys of record, for appellant. James F. Woods, New York City, of counsel.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents. John W. Dewhirst, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   BALDWIN, Judge.

This appeal is from the decision of the Patent Office Board of Appeals sustaining the examiner’s rejection of claims 2-3 and 5, all the claims remaining in appellant’s application, for obviousness under 35 U.S.C. § 103.

The Invention

Appellant’s invention relates to the addition of a series of “pre-opening conveyor belts” to a known cotton bale opening machine. The resulting apparatus is shown schematically in the application drawing as follows:

The bale opening machine includes a series of reciprocating conveyor belts FlF5 with bale opening devices A1-A4 located therebetween. The bales B1-B5 are reciprocated back and forth over the opening devices and the opened cotton fibers drop onto conveyor belt T. To maintain the bales close together during their back and forth movement, conveyors F1-F5 are sequentially operated as recited in claim 2 “in such manner that the rearmost belt in the direction of each reciprocating movement is first to be moved.”

A series of pre-conveyor belts G2-G6 supply bales B7-B11 that are in increasing degrees of “blooming” from left to right. A final pre-conveyor G1 automatically supplies bale B6 to the upstream conveyor belt F5 when a photocell Z indicates the completion of the opening of bale Bl.

In his brief before the board, appellant gave the background and purpose of his invention as:
In the prior art it is known to permit blooming or blossoming of bales simply by untying such and permitting the untied bales to come to ambient conditions in the bale opening area.
It should be appreciated that if a bale is untied and then permitted to bloom, after a given amount of time during which the blooming is more or less completed, the bale becomes increasingly difficult to transport because the compressive forces holding the bale tufts together relax as a function of time, and therefore it is difficult, if not impossible, to neatly pick up a bloomed bale and move it from its blossoming location onto the first of a series of picking means stations.
According to the instant invention, this specific difficulty is absolutely avoided by providing the series of pre-opening conveyor belts referred to above, which are preferably linearly aligned with the picking means. By permitting a bale to blossom on these pre-opening conveyor belts, no significant material transfer difficulty is encountered because it is not necessary to physically lift the bale during blossoming or after blossoming with conventional material transfer means such as a form [fork?] lift truck.

Claim 5, the sole independent claim, reads:

In a bale opening apparatus comprising a plurality of aligned conveyor belts, a plurality of bale opening means disposed between adjacent conveyor belts, means for reciprocating said conveyor belts whereby bales resting thereon are reciprocated in operative relation to said opening means in such manner as to open said bales therewith; control means associated with the downstream-most conveyor belt and bale thereon which, upon sensing completion of the opening of said downstream-most bale, causes the remaining bales to move downstream one conveyor belt length and causes a new, previously untied bale to be positioned on the upstream-most conveyor belt; the improvement which comprises a multiplicity of streamwise alligned pre-opening conveyor belts upstream of, streamwise aligned with the proximate to the upstream-most conveyor belt having bale-opening means associated therewith, wherein each of said pre-opening conveyor belts supports a bale and wherein said control means is operatively connected to all of said pre-opening and bale opening means-associated-convey- or belts and causes a bale on the downstream-most of said pre-opening conveyor belts to be transferred to the upstream-most of said opening means-associated conveyor belts, causes the downstream movement of bales onto the next successive downstream-most conveyor belt and causes a fresh bale to be placed upon the upstream-most pre-opening conveyor belt in an untied condition.

Claims 2 and 3 both depend from claim 5. As noted above, claim 2 requires that the reciprocating conveyor belts be sequentially operated “in such manner that the rearmost belt in the direction of each reciprocating movement is first to be moved.” Claim 3 recites that the “control means is a photoelectric element.”

The References

Platt et al. (Platt) relates to a bale opening device shown as follows in Figure 2:

Platt’s device differs from appellant’s mainly in that a single “loading convey- or 31” delivers a bale to the first of a series of reciprocating conveyor belts of the bale-opening device. The loading conveyor is automatically advanced to supply an unopened bale when a photocell 47 detects that the downstream-most bale on the reciprocating conveyor belt 38 has been fully opened, that is, all of its fibers have been removed. When an untied bale is initially placed on the conveyor 31, a “normally open momentary manual switch 98 * * * provided in parallel with [the] photocell contacts” permits the “loading conveyor” to be moved to properly position the new bale thereon in order “to ready the new bale for the next automated advance of all of the bales * *

A photograph in The Saco-Lowell Bulletin, bearing a date of June 1951, shows a worker manually feeding portions of three bales of cottom to a device for processing. An additional three bales are shown next to the device and are apparently being allowed to “bloom.”

The Rejection

The examiner held that it would have been obvious to modify Platt by providing additional loading conveyors in view of the prior knowledge in the art that cotton bales are conventionally untied and allowed to “bloom” prior to opening such as evidenced by The Saco-Lowell Bulletin. Regarding the additional limitation in claim 2, the examiner stat§d:

Appellant argues in regard to the rejection of claim 2, “while it is possible that the conveyor belts of the reference associated with the picking means thereof could be adapted to sequentially initiate or reciprocate as required by the instant claim 2, it is just as clear that it would take knowledge outside the four corners of the reference and beyond the skill of a routineer in the art to introduce this sequential initation [sic] or reciprocation”. This is not conceded. To a person skilled in the art, the sequential operation of the conveyor belts so that the rearward-most belt is first to be moved could be readily accomplished. One skilled in the electrical arts is certainly considered to be capable of installing a drive to said conveyor belts that would sequentially initiate reciprocation thereof as well as a person skilled in the mechanical arts. Furthermore, whether or not the conveyor belts are sequentially operated, the primary purpose of said conveyor belts is to pass a bale of cotton over the plucking means for the removal of tufts of cotton from the bottom of the bale. Therefore, whether the belts are sequentially operated does not change the fact that the primary function of the apparatus of Platt et al. and the claimed apparatus is to remove tufts of cotton from the bottom [of] a bale of cotton for further processing.

The board noted that the single loading conveyor of Platt allows a bale to partially bloom thereon. It stated:

It is axiomatic in any system of continuous processing that required time intervals are maintained by adjusting the lengths or speeds of operation of the conveyors so that merely stating the requirement of additional time for “blooming” would suggest to a person of ordinary skill that this could be done by providing the loading convey- or with additional length in the reference patent. Whether this additional time be afforded by a single conveyor or by a plurality of serial conveyors is clearly a matter of engineering judgment.

Opinion

Appellant urges in his brief (1) that the prior art does not suggest the automatic advancement of the bales on the pre-conveyors to supply an un-opened bale to the bale opening conveyors when the downstream-most bale thereon is completely opened; (2) that the loading conveyor of Platt is not related to the blooming process of the untied bales; and (3) that the prior art does not suggest the use of a plurality of pre-conveyors rather than a single pre-conveyor.

Appellant contends that the photocell control means 47 in Platt is not interconnected to the conveyor 31. He quotes part of the Platt disclosure, which, he contends, indicates that conveyor 31 is operated by a manual switch. Placed in context, the quoted disclosure does not detract from the clear teachings of Platt that feed conveyor 31 is fully automated with the Platt picking-section control means. After explaining that all of the bales in Figure 2 continue to advance to the left when the leftmost bale is no longer of sufficient height to operate photocell 47, Platt states:

As the advance of bales continues, the photocell 48 operates when the rearmost bale has advanced beyond it to energize relay coil 96 to close its contact 96-1 in series with loader motor 78. When the bales have advanced sufficiently to operate photocell 47, reversing of the direction of bale movement will take place as explained above. When sufficient reverse movement has occurred to again operate photocell 46, not only will the bales again advance but loader motor 78 will be operated, since its contacts 96-1 are closed and its contacts 95-5 have closed by reason of the action of the reversing relay 95 in the forward direction of conveyor motor 56. The bale on the loader conveyor 81 will be advanced simultaneously with the advance of the other bales to the first opening unit and the apparatus will again take up its reciprocating movement as explained above. All of the bales having been advanced and each opener unit being occupied by a bale, a new bale may then be placed on loader conveyor 31, and that conveyor advanced to ready the new bale for the next automated advance of all of the bales by means of manual loader switch 98. Bales may be varied as loaded for blending. [Emphasis ours.]

Thus Platt fully meets appellant’s first argument.

With regard to appellant’s second argument, appellant does not and can not contend that he was the first to discover the difficulties involved in handling a fully bloomed cotton bale. Clearly there would have been nothing unobvious to one skilled in the art in minimizing those difficulties by allowing some of the blooming to take place on Platt’s conveyor 31. Before the board, appellant conceded that some blossoming would take place on the Platt pre-conveyor. Appellant stated that “the function of blossoming conveyor belt 31 of Platt et al. is spread among a multiplicity of conveyor belts in the instant application so that it is possible to permit blossoming of bales in a continuous manner within the same time sequence as is set forth for the picking means.” The only difference in that regard is that Platt’s single pre-conveyor, while “continuous,” is somewhat less continuous than appellant’s plurality of pre-conveyors. While appellant argues that his apparatus allows complete blossoming of the bales in the pre-conveyor system, there is nothing in the claims which would require sufficient pre-conveyors to allow complete blossoming. Moreover, appellant’s specification does not indicate such an absolute requirement, one of the objects being to “permit each bale to remain untethered for several hours previously, freed from their ties, to relax and adapt themselves to the climate in the room, thereby permitting easier picking of the contents thereof.” According to appellant, it takes approximately 24 hours for a bale to completely bloom.

With regard to appellant’s contentions concerning the difference in numbers of pre-conveyors between his invention and that of Platt, we agree with the position of the board quoted above. We again note that no critical number of pre-conveyors is either called for by the claims or indicated in appellant’s specification.

As to claim 2, the role played by the sequential reciprocation recited therein is made dear by the following excerpt from appellant’s specification, with reference to his Figure 1 reproduced supra:

The conveyor belts are driven in the manner that the Bales B1-B5 are moved continuously back and forth in the direction indicated by the double-headed arrow P over the opening devices A1-A4 in such a manner that the bales lie close together. For this purpose, the drives of the conveyor belts F1-F5 are driven in such a manner that upon movement to the right the movement of the belt F5 starts earlier than that of the belt F4, the movement of the belt F4 starts earlier than that of the belt F3, etc., and that upon movement to the left the movement of each belt which is further to the right starts moving before the adjacent belt which is further to the left. [Emphasis added.]

Thus the function of the sequential reciprocation is to keep the bales on the opening conveyors close together by using the rearmost conveyors to push the rearmost bales upon against the bales which are ahead of them in the direction of travel. Turning to the prior art, Platt’s Figure 2, supra, clearly shows the bales on the reciprocating conveyors as abutting one another while they reciprocate over the opening means. That arrangement would prevent Platt’s photocells, such as photocell 48 from falsely sensing that a bale has been fully picked when in truth it is only sensing a gap between the bales.

The difficulty we have with the rejection of claim 2 is that Plátt does not disclose sequential reciprocation or any other method of keeping his reciprocating bales close together. In fact, Platt indicates that all of the conveyors are driven by the single drive means 58 and conveyor drive motor 56, which would apparently preclude sequential reciprocation of the several conveyors. Neither the examiner nor the board has pointed out any reason why it would have been obvious to modify the reciprocating conveyors in Platt to operate “sequentially.” Whether such modification “could be readily accomplished” as suggested by the examiner is not determinative of whether it would have been obvious to do so, and the record does not indicate that this particular modification would have been within the skill of those of ordinary skill in the art. Accordingly, the rejection of claim 2 is reversed.

For the foregoing reasons, we affirm the board’s decision sustaining the rejection of claims 5 and 3, and reverse its decision as to claim 2.

Modified.

      . Serial No. 684,833, filed November 21, 1967.

      . Cotton bales “bloom” or “blossom” by acclimatization to room conditions for a certain period of time after their steel hoops and jute coverings are removed.

      . U. S. Patent No. 3,381,341, issued May 7, 1968 on an application filed October 1, 1964.


author: MARKEY, Chief Judge. ALMOND, Senior Judge

text:
    Application of Konstant YANUSH.
    Patent Appeal No. 8951.
    United States Court of Customs and Patent Appeals.
    May 17, 1973.
    Keith D. Beecher, Jessup & Beecher, Los Angeles, Cal., attorneys of record, for appellant.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; Fred W. Sherling, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   MARKEY, Chief Judge.

This is an appeal from the decision of the Patent Office Board of Appeals rejecting, under 35 U.S.C. § 103, claims 1-6, 9, and 10 of application serial No. 678,045, filed October 25, 1967, for “Apparatus for Making Woolen Footwear and the Like.” We affirm.

THE INVENTION

The invention is clearly set forth in claim 1:

1. In apparatus for molding woolen footwear and the like, the combination of: a mold for receiving a quantity of wool soaked in an aqueous solution and including a first outer mold element having a boot-shaped cavity corresponding substantially to a first half of a boot to be molded in the apparatus, and a second outer mold element having a boot-shaped cavity corresponding substantially to a second half of a boot to be molded in the apparatus; an inner mold element having an external surface corresponding to the interior of the boot to be molded, and vibrating means positioned to engage at least one of said outer mold elements to cause said outer mold elements to vibrate and hammer against the soaked wool contents of said mold so as to cause the wool in said mold to assume a hard consistency suitable for footwear.

The remaining claims all depend on and stand or fall with claim 1.

THE PRIOR ART

The references were to Frieder et al., 287,492; Yanush, 3,067,467; Yanush, 2,-975,480; Ludwig, 3,160,921; Abbott, 3,-323,188. Frieder et al. disclose outer and inner mold elements and a vibrator means positioned to engage the mold and facilitate molding of mixtures of plastic and fibrous material. Yanush, 3,067,467, shows the claimed footwear mold, sans vibrator.

OPINION

Appellant’s sole argument is that his molding machine includes a component that “hammers” against the material in the mold. The result is a finished footwear product, an improvement over that of Yanush, 3,067,467, which required post-molding treatment. Appellant nowhere points to any distinction between the structure set forth in the appealed claims and that rendered obvious by Yanush, 3,067,467, and Frieder et al. Appellant disputes the board’s statement that “appellant would endow his claims with some of the characteristics of apparatus and other characteristics of the process of using that apparatus.” Yet his entire argument is directed to a process limitation, i. e. to the operation of a vibrator to “hammer” rather than to “settle” materials in a mold.

Appellant’s use limitation does not impart a structural feature different from those of the prior art. The last paragraph of 35 U.S.C. § 112, allowing an element to be expressed as a means for performing a function, cannot aid appellant. Frieder et al. disclose the same means (a vibrator) for accomplishing the hammering function. Appellant has not denied that the Frieder vibrator inherently possesses that capability. In re Ludtke, 441 F.2d 660, 58 CCPA 1159 (1971). Whether a vibrator is operated gently to settle materials in a mold or more forcefully to “hammer” them is a process limitation which does not limit or define the claimed apparatus.

We find no error in the board’s decision. Accordingly it is affirmed.

Affirmed.

ALMOND, Senior Judge

(concurring).

With all due respect, I cannot agree with the reasoning of the principal opinion.

Appellant in this case has combined an apparatus for making woolen footwear, an apparatus which appears to closely correspond to that in an earlier patent of his, with means to vibrate the mold elements for a stated purpose. In my view, that purpose is the function specified for the vibrating means, i. e., “to cause said outer mold elements to vibrate and hammer * * In that regard, I consider the word “vibrating” appearing before “means” to be a redundant and less specific functional definition of the means in question than appears after the word “means.”

The board made it clear that it regarded as well known the combination of a molding apparatus with a vibrator to settle the material to be molded. For this reason, it apparently felt that the combination of the molding apparatus in question here with a vibrator would be obvious no matter what function the vibrator served. The board went on to say:

Appellant does not appear to challenge the combination of a vibrator with a mold for the purpose of filling the mold but directs his argument to the nature of the material which is to be placed in the mold for shaping into the form of a boot. This argument is based upon the appealed claims which do not set forth merely the structure of the mold and its vibrator but purport to limit the claim to the use of a particular material to be molded, that is, moistened felt.

To me, this obviously means that the process limitation referred to by the board in the portion quoted in the principal opinion refers to the use of the apparatus to mold woolen footwear and not the operation of the vibrator per se. For this reason, I think the principal opinion gives the wrong impression as to what the board decided. I regard the board’s opinion as saying, in effect, that it is of no avail to state in the claim that the apparatus is to be used to mold woolen footwear or that the vibrating means employed is to work upon the woolen material. I agree with the board that these are merely characteristics of the process to be carried out by the apparatus which in and of themselves do not make the claims patentable.

However, I do not believe that it is proper to say that the language in the claim calling for “means * * * to vibrate and hammer” “is a process limitation which does not limit or define the claimed apparatus.” In my view, this is proper claim language sanctioned by 35 U.S.C. § 112, par. 3 that does define and limit the claim by defining the action of the vibrator. Nevertheless, I do feel that the combination called for by the claim would have been obvious to one of ordinary skill in the art at the time the invention was made and, accordingly I would affirm the board.


author: MARKEY, Chief Judge.

text:
    Judson Douglas WETMORE, Appellant, v. Wendell S. MILLER, Appellee.
    Patent Appeal No. 8909.
    United States Court of Customs and Patent Appeals.
    May 17, 1973.
    Rehearing Denied July 5, 1973.

      Robert M. Taylor, Jr., Douglas E. Olson, Los Angeles, Cal. (Lyon & Lyon), Los Angeles, Cal., attorneys of record, for appellant. Francis Thomas, Jr., Washington, D. C. (Bacon & Thomas), Washington, D. C., of counsel.
    William P. Green, Los Angeles, Cal., attorney of record, for appellee.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Judges, and ALMOND, Senior Judge.
   MARKEY, Chief Judge.

This appeal is from the decision of the Board of Patent Interferences in interference No. 96,363, awarding priority as to its two counts to Miller, the senior party. Appellant provoked the interference by copying in his application serial No. 499,923, filed October 21, 1965, two claims from appellee’s patent No. 3,247,-315, issued April 19, 1966 on an application filed April 27, 1962. The board resolved the case on the basis of ancillary matters raised by appellee’s motion to dissolve. It ruled that appellant was barred from making count 1 by 35 U.S.C. § 135 because he “was not claiming ‘the same or substantially the same subject matter’ ” set forth in that count within one year from the date appellee’s patent was granted.' It held that count 2 was not supported by appellant’s application. We affirm as to count 2. As to count 1, we reverse and remand for such action as may be appropriate in view of evidentiary records which the board found unnecessary to discuss.

THE SUBJECT MATTER

The invention relates to a connector described broadly in count 1 as follows (paragraphing supplied):

1. A connector for attachment to an end of an elongated element, said connector comprising
a generally tubular member formed of sheet form spring material adapted to extend about and retain said end of the element, said spring material being circularly discontinuous to present two edges which are shiftable relative to one another generally circularly about said element in a relation varying the internal size of said member, the resilence of said member tending to tighten the member by its own resilience to a small transverse dimension condition for securing said member and element together, and means fixed to said member for retaining said member in a larger dimension condition for initial reception of said end of the element and releasable to free the member for construction by its own resilience to said small dimension condition while said means remain fixed to said member.

The connector may be used to receive the ends of two elements or wires in abutting relationship and secure them in that condition.

Appellee discloses several embodiments in which the “means * * * for retaining said member in a larger condition * * * ” constitute elements such as shoulders or tabs actuatable to a releasing condition to allow the member to constrict rapidly toward its normal diameter. In another form of appellee’s device the “means” is a tube of solder which collapses when the device is heated to the melting temperature of the solder. The latter form is more specifically defined in count 2 which reads as count 1 with the following language replacing the last paragraph thereof:

* * * soldering material retaining said member in a larger dimension condition for initial reception of said end of the element and adapted upon melting to free the member for constriction by its own resilience to said small dimension condition and to solder the member to said element.

Appellant discloses what he designates as “recoverable articles” and his disclosure includes embodiments in which the “recoverable” material may be a split-cylinder type spring of metal. The spring is held under tension at greater than its preset diameter by a “fusible insert” of tubular shape disposed within the spring. When the article is heated the fusible insert melts and the spring retracts toward its normal diameter, to connect elements or wires therein. Appellant discloses that a ball of solder and flux may be positioned within the fusible member so that the solder and flux are also caused to fuse and the solder “supplements the fusible member as encapsulating material.”

COUNT 2

The board first considered count 2 which appellee charged was not supported by appellant’s application. In agreeing with appellee, the board noted that appellant does disclose the use of a heat fusible insert for retaining a split spring member in a distended position. However, it stated that appellant “has not and cannot point to any explicit disclosure that such heat fusible insert for that purpose is to be solder.” It also noted that, while solder is referred to for another purpose, there is no suggestion that it be used for the fusible insert as required by count 2.

The board was plainly correct on both points. Nowhere in the application is there any disclosure that the insert be made of solder instead of the various non-metallic compositions which are disclosed. The disclosure of a ball of solder positioned in the fusible insert as an additional element obviously does not constitute a disclosure that the insert itself be made of solder. The decision as to count 2 will be affirmed.

COUNT 1

Priority as to count 1 was awarded appellee on the ground that appellant was prohibited from making the claim corresponding thereto by the provision of 35 U.S.C. § 135 reading:

(b) A claim which is the same as, or for the same or substantially the same subject matter as, a claim of an issued patent may not be made in any application unless such a claim is made prior to one year from the date on which the patent was granted.

Appellee’s patent was cited as a reference against appellant’s application on June 6, 1966. Appellant undertook to overcome the patent by an affidavit under Rule 131. Under date of May 16, 1967 the examiner advised appellant that Rule 131 action was not appropriate because “the same invention” was being claimed in the patent and in appellant's application. Appellant copied the patent claims which became counts 1 and 2 on August 4, 1967, more than one year from the date on which appellee’s patent issued.

The issue as considered by the board and argued here by the parties is whether appellant was claiming substantially the same subject matter as count 1 in a claim under prosecution during the one year period specified in section 135(b). That issue is in accord with the criterion that has been adopted by this court in determining the applicability of section 135(b) in like situations. See Rieser v. Williams, 255 F.2d 419, 45 CCPA 953 (1958); Stalego v. Heymes, 263 F.2d 334, 46 CCPA 772 (1959).

In making its determination, the board considered specifically appellant’s original claim 12 and claims 22 and 23 which had been added by amendment during the statutory period. Those claims (with claims 10 and 11 on which claim 12 depends) read:

10. A recoverable article comprising a recoverable member and a fusible member, said recoverable member and said fusible member being in abutting relation, said recoverable member being a spring, said fusible member being a rigid member which holds said spring in a distended state.
11. The article of claim 10 wherein said spring is a split cylinder.
12. The article of claim 11 wherein said fusible member is tubular.
22. A heat recoverable article comprising a heat recoverable member and a fusible member, said recoverable member being a split cylindrical spring and said fusible member being placed within such spring and holding it in a recoverable position.
23. The article of claim 22 wherein the fusible member is in the form of a cylinder placed within the cylindrical spring and contacts the inner walls of the spring.

The board recognized that both count 1 and appellant’s claims are drawn to the combination of a tubular member of spring material and a second element that holds the spring in a distended shape. It could not detect “any material differences” between the “structural cooperation between the recited elements of structure and the functions performed by them,” as recited in the count and appellant’s claims. However, it found the term “fusible” in appellant’s claims was “a material limitation defining a material distinction” between the invention claimed in appellant’s claims and in count 1. It further held that the difference amounted to “more than a matter of mere scope.” Thus, it stated:

This term, “fusible”, is the one term that limits the invention claimed by Wetmore to his disclosed conception as embodied in identifiable species within the generic concept defined by the count in issue. Wetmore disclosed and claimed no structure other than a member of a heat fusible material for retaining the recoverable member in its distended condition where some means external to the recoverable member was required. On the other hand the count broadly covers one concept by Miller as embodied in at least three other structural configuration [s], utilizing mechanically release-able “means” (a tab) for retaining the tubular spring member in its distended condition, in addition to another concept as embodied in two configurations utilizing solder as the releasable “means”, i. e. a heat fusible member.

We think the board attributed too much significance to the fact that count 1 applies to “one concept by Miller embodied in at least three other configurations” that utilize tabs or like projecting means, a form which appellant’s claims 12, 22 and 23 did not cover. On the other hand, it did not give sufficient weight to the other “concept as embodied in [appellee’s] two configurations utilizing solder as the releasable ‘means’,” the coverage of which “configurations” by appellant’s claims 12, 22 and 23 and the count does not appear to have been questioned by appellee. Viewed with this in mind, the additional restrictions imposed on appellant’s claims by the word “fusible” amounts to a difference in scope alone. The count has necessarily been considered allowable over the prior art and is broader than appellant’s claims 12, 22 and 23. Therefore, the “fusible” limitation of appellant’s claims must be regarded as not necessary to patentability and not “material” for present purposes. See Stalego v. Heymes, supra, wherein the question whether claims are drawn to substantially the same subject matter is equated to whether the differences are material.

Accordingly, we are satisfied that appellant was claiming substantially the same subject matter in count 1 within the meaning of section 135. This conclusion is in conformity with the position of the examiner as evidenced by the refusal to consider appellant’s Rule 131 affidavit in the ex parte prosecution and the denial of appellee’s motion to dissolve for failure to comply with section 135.

The decision of the board is affirmed as to count 2. As to count 1, the decision is reversed and the appeal remanded for such action, in accordance with this opinion, as may be required with respect to the “evidentiary records presented on behalf of the parties” which the board found it “not necessary * * * to discuss” in view of the holding it made.

Modified and remanded.

      . Appellant’s application is designated a division of eopending application serial No. 211,747, filed July 23, 1962, and was accorded the benefit of that filing date.

      . The board observed :
      No question has been clearly raised herein as to the cross-readability of count 1 and the claims of Wetmore on the disclosures of the parties. Further, the question of Wetmore’s right to make a claim corresponding to count 1 for lack of supporting disclosure has not been raised.


author: LANE, Judge.

text:
    Application of Borje Oscar ROSAEN and Robert L. Firth.
    Patent Appeal No. 8921.
    United States Court of Customs and Patent Appeals.
    May 10, 1973.
    Robert C. Hauke, Hauke, Gifford, Patalidis & Dumont, Lathrup Village, Mich., attorneys of record, for appellants; Frank P. Cyr, Washington, D.C., of counsel.
    S. Wm. Cochran, Washington, D.C., for the Commissioner of Patents; Fred W. Sherling, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, RICH, BALDWIN, and LANE, Judges, and ALMOND, Senior Judge.
   LANE, Judge.

This appeal is from the decision of the Patent Office Board of Appeals affirming the examiner’s rejection of claims 16-19 and 22-23 of appellants’ application, entitled “Fluid Cylinder,” as unpatentable under 35 U.S.C. § 103 in view of certain prior patents. We affirm.

The claimed subject matter relates to a multi-chambered fluid cylinder and piston device having four actuating chambers, two of which are pressurized to extend the device and two of which are pressurized to retract the device. Appellants state that the relationship between the cross-sectional areas of the various chambers as set forth in the claims provides an extension force up to about two times the retraction force. Appellants’ preferred embodiment is illustrated in Fig. 1 of the application drawings reproduced herein.

Claim 17 is representative of the appealed claims. Claim 17, with subparagraphing and Fig. 1 reference numerals added for clarity, reads:

17. In a fluid device [10] having a first tubular member [12] provided with a closed end [14],
a rod [18] connected to the closed end of said tubular member and extending axially into the interior of said tubular member,
a first piston [20] fixedly mounted on said rod and axially spaced from the closed end of the first tubular member,
a second piston [30] movably mounted on said rod and forming a first chamber [34] intermediate the closed end of said first tubular member and said second piston and a second chamber [44] intermediate said pistons,
a second tubular member [24] having a closed end [26] and telescopically received in the open end of said first tubular member [12] and over said first piston [20] so that said first piston forms a third chamber [40] intermediate the closed end of said second tubular member and said first piston,
and said second tubular member [24] being radially spaced from said first tubular member [12] to form a fourth fluid chamber [48] intermediate the inner surface of said first tubular member and the exterior surface of said second tubular member,
means [46] connecting said first tubular member [12] and said second tubular member [24] so the movement of said second piston [30] along said rod produces movement of said second tubular member [24] whereby expansion of said first [34] and third [40] chambers and relative movement of said pistons toward one another produces extension of said fluid device, and expansion of said second [44] and fourth [48] chambers and separation of said pistons produces retraction of said fluid device,
the improvement comprising forming said chamber so that said first chamber [34] has a cross sectional area greater than the sum of the cross sectional area of the second [44] and fourth [48] chambers;
means [42] for simultaneously connecting said first and third chamber to a common fluid pressure source [38] to expand said fluid device;
and, means [52] for simultaneously connecting said second and fourth chamber to a common fluid pressure source [56] to retract said fluid device.

In more simple terms, the improvement recited in claim 17 is that the cross-sectional area of the first chamber 34 is greater than the sum of the cross-sectional areas of the second and fourth chambers 44 and 48. Claim 16 recites that the sum of the first and third is greater than the sum of the second and fourth. Claims 18 and 19 recite that the third is greater than the sum of the second and fourth. Claim 22 recites that the sum of the first and third is twice as great as the sum of the second and fourth.

The board adopted the examiner’s rejection of all of the claims as obvious under 35 U.S.C. § 103 over a patent to Rosaen (hereafter the Rosaen patent), a co-inventor of the subject matter presently claimed, in view of either Onions, Schmidt or Bohler. These referenee patents each relate to fluid cylinders or motor devices which, like appellants’ constructions, are formed by two concentric tubular members with pistons, and each reference construction provides four chambers.

In one embodiment of the Rosaen patent, the third chamber is pressurized to extend the cylinder and, as in appellants’ device, the second and fourth chambers are pressurized to retract it. The first chamber is vented to the atmosphere and the cross-sectional area of the third .chamber is made equal to the sum of the areas of the second and fourth chambers to provide equal force in both directions. In another embodiment, only the second and third chambers are pressurized, and the size of the second chamber relative to the third chamber is selected so that either movement in each direction is equalized or “any desired difference in the rate of movement in the two directions can be produced.”

Onions discloses pressurizing two chambers to extend or retract the device in one direction, and one of the other two chambers is filled with compressed gas to automatically retract or extend the device in an opposite direction. The second of the other two chambers may be pressurized to operate the device should gas leakage occur.

Schmidt discloses one embodiment wherein the first and third chambers are pressurized to extend the device while the second and fourth chambers are vented to the atmosphere. In another Schmidt embodiment, all four chambers are pressurized “ [wjhere power retraction is desired, i.e., a double stroke actuator * *

Bohler discloses pressuring only the first and third chambers as in Schmidt’s first embodiment.

The board found that the claimed subject matter differed from that disclosed in the Rosaen patent in that the fourth chamber is pressurized according to the claims on appeal rather than vented to the atmosphere as in the Rosaen patent. It agreed with the examiner’s conclusion that pressurizing the fourth chamber of the fluid cylinder disclosed in the Rosaen patent would have been obvious to one skilled in the art in view of the teachings of the other references relied upon.

OPINION

The principal argument advanced by appellants is to the effect that pressurizing the fourth chamber of the Rosaen cylinder would not have been an obvious modification of the Rosaen patent. Appellants state that only three of the four chambers are actuated and that the single chamber actuated to extend the device has a cross-sectional area equal to the sum of the cross-sectional areas of the two chambers actuated for retraction so that the thrust in both directions will be equal. Appellants contend that pressurizing the fourth chamber to introduce imbalance in the system, the objective of the presently claimed device, is contrary to the primary purpose of the Rosaen patent. A Rosaen affidavit expresses these views, and Rosaen concluded therein that the claimed subject matter would not have been obvious from the prior art relied upon. The examiner was not persuaded by the affidavit. The board did not mention the affidavit but did affirm the examiner.

Schmidt discloses that pressurizing the fourth chamber would in fact introduce imbalance in the system, and appellants have not contended that such a result would be unexpected. Schmidt also discloses that “[i]n many applications, fluid actuators are required to apply an appreciably greater force in one direction than in the other.” Such disclosure indicates the desirability of providing imbalance. It seems clear to us that at the time appellants’ invention was made, the desirability of using four chambers actuated to provide unequal pressure and therefore greater force in one direction than in the other was appreciated by those skilled in the art. We do not think the disclosure of the Rosaen patent would have dissuaded those skilled in this art from adopting this recognized alternative.

Appellants state that the Rosaen patent disclosure is limited to one objective realized by one, solution. We conclude that the Rosaen patent discloses a device which may be adapted to satisfy other known objectives by known modifications. Finding that the other references demonstrate the desirability of such modification, we agree with the board.

We conclude that as a whole, the claimed subject matter would have been obvious within the meaning of § 103. The decision of the board is accordingly affirmed.

Affirmed.

      . Serial No. 660,454 filed August 14, 1967.

      . U.S. Patent No. 3,335,642 issued August 15, 1967, on an application filed January 8, 1965.

      . U.S. Patent No. 2,193,736 issued March 12, 1940.

      . U.S. Patent No. 3,371,582 issued March 5, 1968, on an application filed September 16, 1965.

      . French Patent No. 986,331 published July 30, 1951.


author: LIVELY, Circuit Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WOLVERINE WORLD WIDE, INC., Respondent.
    No. 72-1944.
    United States Court of Appeals, Sixth Circuit.
    Argued April 13, 1973.
    Decided May 23, 1973.
    Jerome H. Brooks, Director, Region 7, N. L. R. B., Detroit, Mich., Howard Kaufman, N. L. R. B., for petitioner-appellant; Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Abigail Cooley Baskir, Attys., N. L. R. B., Washington, D. C., on brief.

      Peter A. Patterson, Grand Rapids, Mich., for respondent-appellee; Miller, Johnson, Snell & Cummiskey, Grand Rapids, Mich., on brief.
    Before PECK, MILLER and LIVELY, Circuit Judges.
   LIVELY, Circuit Judge.

From the beginning of these proceedings the Respondent, Wolverine, has insisted that its distribution center located in Rockford, Michigan is not an appropriate bargaining unit under Section 9 (b) of the National Labor Relations Act, as amended, 29 U.S.C. § 159(b). Wolverine has maintained throughout the proceedings that all manufacturing operations of the company in the State of Michigan should be included as one bargaining unit. The unit thus contended for by the Respondent would include facilities in Grand Rapids, Ithaca, Green-ville, Big Rapids and Reed City, Michigan as well as in Rockford. Together these facilities constitute the Hush Puppies/Wolverine/Ski Products Division of Wolverine World Wide, Inc. At the hearing held pursuant to Section 9(c) of the Act to determine an appropriate unit, Wolverine presented a number of officers of the Division who testified concerning its organization and methods of operation. It was stipulated that the distribution center at Rockford had approximately 100 eligible employees. The function of the distribution center was to receive shoes produced at the various plants of the Division, store them until orders.were received, and then ship them to customers. At the time of the hearing, one manufacturing operation was being carried on at the distribution center. This involved stitching the soles on shoes which came to the center with soles cemented and unstitched. This manufacturing operation was scheduled for removal from the distribution center.

Testimony showed that company production schedules were prepared weekly in the central office and distributed to the various plant managers who then had the responsibility of calling in or laying off employees to meet the schedule. The distribution center was managed by a superintendent who reported directly to the manager of warehousing. The manager of warehousing testified that each unit manager under him had more or less autonomous control of his unit, subject to his overall supervision. The unit manager of the distribution center had the authority to hire and fire, subject to review, and using the facilities of the central personnel office of the Company. The manager of warehousing testified that it would be “a strange set of circumstances if he would overrule the decision of a unit manager to let an employee go,” and that, in fact, he had never overruled a decision to fire a man.

The employment manager of Wolverine testified concerning the corporate organization for labor and employee relations and the various rules and guidelines in force throughout the company. He also described the procedures for transfer of employees between various facilities, and a number of fringe benefits available to employees throughout the company. An employee handbook was introduced which he testified generally governs the policies, practices, procedures, rules and regulations concerning employees of the corporation in all of its divisions. The testimony of this witness confirmed that the local unit manager made the decisions on hiring, firing, and disciplining of employees and that staff officers only made recommendations. The testimony developed that similar procedures were followed with respect to transfers, leaves of absence, promotions, overtime and pay adjustments. In all of these matters the Company promulgated general guidelines and regulations, but each individual unit manager possessed a significant degree of discretion in matters affecting employees. From the entire record it is evident that the individual facility managers had authority beyond the mere power to implement centrally formulated policies.

In NLRB v. Pinkerton’s, Inc., 428 F.2d 479 (6th Cir. 1970), while overturning a unit determination made by the Board, this Court affirmed the principle that the Board’s decision on whether a given unit is appropriate will not be disturbed except for an abuse of discretion or violation of the statute. In that opinion, at pages 484 and 485, there are set forth four controlling principles by which the Board is bound in making a unit determination. The Respondent in this case particularly stresses the fact that its labor policy is centrally determined, which is one of the principles referred to in Pinkerton’s. Although there is evidence of centrally determined labor policies, the Board was justified in finding that the individual unit managers of Wolverine, while operating within company guidelines, maintained individual initiative in a number of personnel areas and had final responsibility in matters of critical importance to employees. The Board was also justified in finding from the record that there is substantial geographic separation between some of the plants and only minimal interchange of employees among the various facilities. There was no recent collective bargaining history from which to determine whether a local unit manager would have authority in collective bargaining.

We conclude that the Board has articulated “ . . . substantial reasons for its unit determination” and that this determination does not unreasonably deny the Respondent “adequate protection from the results of piecemeal unionization.” 428 F.2d at 484-485. See also Michigan Hospital Service Corporation v. NLRB, 472 F.2d 293 (6th Cir. 1972). Upon consideration of the entire record it is clear that the Board did not abuse its discretion in designating the distribution center as an appropriate bargaining unit. NLRB v. American Life & Accident Insurance Co. of Kentucky, 394 F.2d 616 (6th Cir.) cert. denied 393 U.S. 913, 89 S.Ct. 237, 21 L.Ed.2d 199 (1968).

In its order finding that the distribution center in Rockford, Michigan was an appropriate unit for the purpose of collective bargaining, the Board, through its regional director, ordered an election which was held on January 26, 1971. Seventy-five eligible employees out of a total eligibility list of 105 voted on that date. One union received 38 votes, with 35 being cast for no union and two votes for another union. The Respondent filed objections to the election based on the fact that “ . . . the Rockford, Michigan area was beset at that time with severe weather conditions approaching blizzard or near blizzard proportions.” It was alleged that the failure of 28.5 per cent of the eligible employees to vote in an election decided by three votes, in view of the severe weather conditions, required the rescheduling of the election. Affidavits verifying the weather conditions in the Rockford area were filed with the objections. No affidavit from any employee stating that he or she was prevented from voting by reason of the weather on the day of the election was filed by Wolverine. No hearing was held on the objections to the election, and the regional director issued a supplemental decision overruling the objections and certifying the results of the election.

On appeal the Respondent argues that the Board erred in failing to conduct hearings on its objections to the election. There is no statutory requirement that hearings be held, but the Board’s Rules and Regulations do provide for a hearing “ . . . if it appears to the regional director that substantial and material factual issues exist which can be resolved only after a hearing, . . ..” 29 C.F.R. § 102.69 (c). Only one case was cited concerning the effect of weather conditions on the validity of a labor election. In Red Wing Potteries, Inc., 88 NLRB 1234 (1950), the Board held that inclement weather was not a sufficient reason to set aside an election; however, in that case 91 per cent of the eligible voters did cast ballots. In the present case only 71.5 per cent of the eligible employees voted, but the information submitted with the objections failed to show a direct causal relationship between the weather conditions and the failure of nearly 30 per cent of the eligible voters to participate in the election.

The question presented is whether the Respondent, by its objections, disclosed the existence of substantial and material factual issues. Respondent states that the requirement of the Board Rules that reasons for objections consist of a short statement to be filed within five days precluded it from conducting a full-scale investigation and presenting detailed evidence. However, it contends that the objections and affidavits did raise substantial and material factual issues which could only be resolved at a hearing which would develop all of the evidence available. The extent of the administrative investigation conducted by the regional director as a result of the objections filed by Respondent is not disclosed in the record. The regional director found that Red Wing Potteries, Inc., supra, was dispositive of the issue. Since Red Wing involved the failure of nine per cent of the eligible voters to participate and this case involves a failure of 28.5 per cent to do so, there is a substantial difference between the cases. We do not agree that Red Wing Potteries, Inc., supra, is dis-positive of this case, since it is conceivable that a party could make a showing that weather conditions have caused an otherwise valid election to be non-representative. Nevertheless, in order to require a hearing the objecting party must show what evidence will be introduced to support its contentions and not merely rely on inferences as Respondent did in this case. NLRB v. Louisville Chair Co., 385 F.2d 922 (6th Cir. 1967), cert. denied 390 U.S. 1013, 88 S.Ct. 1264, 20 L.Ed.2d 163 (1968); NLRB v. Tennessee Packers, Inc., Frosty Morn Division, 379 F.2d 172 (6th Cir.) cert. denied 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967). Wide discretion has been entrusted to the Board in its supervision of elections and we do not find an abuse of this discretion in failing to conduct hearings on the objections filed by the Respondent.

Sometime after the election, the union filed a number of charges of unfair labor practices including refusal to bargain. The Trial Examiner found in favor of the union on all of these charges and recommended an Order which was adopted by the Board. The Board’s Decision and Order is reported at 197 NL RB No. 11. The Order of the Board is supported by substantial evidence and enforcement is hereby granted.


text:
    Clyde COLLIER, Petitioner-Appellant, v. John W. WINGO, Warden, Kentucky State Penitentiary, Eddyville, Kentucky, Respondent-Appellee.
    No. 72-1960.
    United States Court of Appeals, Sixth Circuit.
    Argued April 20, 1973.
    Decided May 15, 1973.

      Kurt Meier (Court Appointed), Newport, Ky., on brief for appellant.
    Jackson D. Guerrant, Frankfort, Ky., for appellee; Ed W. Hancock, Atty. Gen., on brief.
    Before CELEBREZZE, PECK and KENT, Circuit Judges.
   PER CURIAM.

The appellant was convicted in a Kentucky state court of armed robbery and is presently serving a life sentence. He contends that in spite of his requests his court-appointed attorney failed to perfect a direct appeal from his conviction.

The question of whether the appellant was denied the effective assistance of counsel was first presented to the Boone Circuit Court of Kentucky upon a motion to vacate and set aside the judgment of conviction. In that court, the appellant presented as evidence an October 29, 1963, letter from his court-appointed attorney which purported to be in response to a letter of the appellant dated October 10, 1963. The appellant testified that he had also written an earlier letter, but the attorney testified that he had not received any letter from the appellant other than the October 10, 1963, letter. The Circuit Court denied the requested relief.

The appellant then filed this petition for habeas corpus relief in the District Court, submitting in addition to the evidence presented to the Boone Circuit Court, a letter from his attorney dated September 23, 1963. This letter, written prior to the expiration of the time for filing a direct appeal, indicated that it was in response to a letter of the appellant and arguably indicated that the appellant requested him to perfect a direct appeal. For present purposes, it is important to note only that the existence of the letter contradicts the attorney’s testimony before the Boone Circuit Court. The District Court denied the petition on the ground that this question had been presented to the Kentucky courts in the motion to set aside sentence.

The evidence and allegations presented to the District Court indicate that the hearing before the Kentucky Circuit Court was not a full and fair hearing as contemplated by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1963), because the appellant was at that time unable to produce the letter of September 23, 1963. Townsend holds that the Federal Court must provide an evidentiary hearing if it appears that the state court did not reliably find relevant facts either at the time of the trial or in a collateral proceeding. 372 U.S. at 313-314, 83 S.Ct. 745. Inasmuch as the appellant would be entitled to relief if the truth of his allegations is established, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and inasmuch as the factual allegations and evidence purport to be contradictory to sworn testimony upon which the state court relied, we feel required to remand the cause to the District Court for an evidentiary hearing and a determination as to the relevant facts concerning his alleged request for a direct appeal from his conviction, and as to the legal consequences of such facts as may be established.

The judgment of the District Court is reversed, and the case is remanded to the District Court for further proceedings consistent herewith.