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a line on the record form (the location of that area determining whether a one's, ten's, hundred's, etc., accumulator will be actuated by each mark therein, that each mark has an independent effect on the tabulating equipment (each causing an accumulator to be advanced by a value of "1"), and that, even though groups of marks (each group of marks being a "character") produce groups of voltage pulses (each group of pulses being a "voltage waveform"), the disclosed reading and tabulating equipment is actuated only by the individual marks and impulses induced thereby and does not in any way recognize or discriminate between the various characters or waveforms. Thus, whereas in Knutsen's record the significance of a given mark is determined by the column and row in which it is located,12 in appellant's record, the significance of a mark is determined by its being located in a particular area (or "column") of a line.13 Also, it is apparent that, so long as the marks are sufficiently separated so that each induces a distinct signal in the reading head, the spacing of the marks within a particular area, and consequently the "configuration" of the groups of marks or characters, is unimportant to appellant's disclosed invention. We are not persuaded that appellant's use of a number of marks which corresponds to the digit represented renders these claims patentable.

Although appellant does not so argue as to the rejection over Knutsen and Begun, he does argue elsewhere that Knutsen's data record is not "visually readable." We disagree inasmuch as anyone familiar with the coding scheme used by Knutsen obviously could decipher the information on the record by mere inspection.

Not being convinced by any of appellant's arguments regarding the rejection of claims 1-6, 14-16, and 45-49, we affirm the decision of the board as to these claims.

Claims 7-9, 43, and 45

Claims 7-9 are directed to systems for "recording and reading characters" and claims 43 and 44 to methods of producing data records. Claims 7 and 9 recite means for printing (claim 7) or depositing (claim 9) differently shaped distributions of magnetic material on a nonmagnetic record, means for causing relative movement between the record and the printing means, a magnetic reading head having an air gap, means for moving the record relative to the air gap so that voltage waveforms are induced in the reading head, and means for identifying the distributions by the waveforms. Claim 8, which is dependent on

13 The column determines whether it is in the one's, ten's, hundred's, etc., place and the row determines the digit represented.

13 The area determines whether it is in the one's, ten's, hundred's, etc., place and the number of marks in that area determines the digit represented.

claim 7, specifies that the magnetic material has high coercivity and remanence values and is permanently magnetized.

Claim 43 is drawn to a method of forming a magnetically readable record on a non-magnetic record member by supporting the record member on the platen of a printing business machine having printing types for printing groups of spaced parallel lines and having an inking ribbon bearing a ferromagnetic composition and operating the printing types to press the inking ribbon against the record member. Claim 44 recites a method of producing magnetic records by printing groups of lines containing ferromagnetic material on a non-magnetic record medium.

We affirm the rejection of these five claims on Broido in view of Knutsen and Huebner. Treating claims 43 and 44 first, we have pointed out above why, in our opinion, Knutsen renders obvious appellant's data record and method of transforming data. Adding Broido's disclosure of incorporating into an ordinary typewriter the numeral type in his Fig. 3, supra, we find the methods of forming data records recited in claims 43 and 44 to be equally obvious.

As for claims 7-9, we have pointed out in our discussion of the first group of claims why it would be obvious in view of Knutsen and admitted knowledge of the art to magnetize the magnetic characters before reading them, why it would be obvious to use an air-gap type of reading head to detect or read such characters, and why we are not impressed by appellant's arguments about differently configured characters and waveforms. Our conviction on the last point is strengthened by Broido's disclosure of coding arrangements in which short, parallel marks are located in particular areas of a line, the positioning of one or more marks within a given area determining the digit, represented and the location of that area within the line determining whether that digit is in the one's, ten's, hundred's, etc., place. The only difference then between the coding arrangements of Broido and appellant is that, respectively, the position of the marks and the number of marks within one of the mentioned areas are significant. We do not see that this difference lends patentability to the claim. Since both Broido and Huebner teach means satisfying the printing means recitation in claims 7-9 and the former teaches means for moving a record relative to the printing means, and since we see nothing unobvious in combining these old features into one system, we affirm the rejection of claims 7-9, 43, and 44 over Broido in view of Knutsen and Huebner.

Claim 42

This claim, drawn to a "bookkeeping" machine, reads as follows: 42. In a bookkeeping machine using cards having record means adapted to have magnetic recordings thereon corresponding to different characters, in com

bination pickup means for successively sensing magnetic recordings on said record carrier means and for producing electric signals having predetermined characteristics associated with the respective sensed recordings, data storage means adapted to store information represented by said recordings, marking means having a plurality of said characters thereon and being movable between a plurality of positions, said marking means being adapted to mark on the card, in each of said positions, one of the characters represented by a recording on said record carrier means, selectively responsive means connected to said pickup means and selectively responsive to said electric signals produced thereby, and operating means controlled by said selectively responsive means for entering information into said data storage means in accordance with the predetermined characteristics of the respective signals and for subsequently moving said marking means between its positions in accordance with the information in said data storage means, whereby information is entered in said data storage means and a character may be marked on said card, said information and said character corresponding to the recording on the record carrier means.

The two rejections of this claim on Tauschek in view of Knutsen and on Bryce I in view of Knutsen are both sound, the latter in our opinion being the sounder and the one we will discuss. The board opined that it would have been obvious to use Knutsen's type of magnetic card to control the device of Bryce I. We agree.

Appellant's only argument as to this rejection is that Bryce I "lacks any means for recording information from the storage means back onto the record card." Bryce I discloses means for printing information recorded on the data cards, indicates that the magnetic deposits can be printed on the cards, and indicates that (in addition to magnetically recorded data) written, printed, and typewritten data can be placed on his cards. Inasmuch as Knutsen discloses that the magnetic marks on his cards can be applied by machine, we think it would have been obvious to adapt the Bryce I apparatus so that information from the accumulating mechanism or storage could be recorded back onto the record cards.

The decision of the board is affirmed.


427 F. 2d 801; 166 USPQ 85



In considering double patenting rejection in application wherein terminal disclaimer has been filed, court's only concern need be a determination of whether any substantive difference exists between subject matter of claims on appeal and that claimed in applicant's patent or whether the only difference is in language of claims, in other words, whether differences are sham or real, semantic or actual.



Fact that claims of application and of patent define overlapping, but different, subject matter is enough to warrant giving effect to terminal disclaimer, thus obviating double patenting rejection.


Claims are not rejected as unduly broad under 35 USC 112 for noninclusion of limitations dealing with factors which must be presumed to be within level of ordinary skill in the art; claims need not recite such factors where one of ordinary skill in the art, to whom specification and claims are directed, would consider them obvious.

United States Court of Customs and Patent Appeals June 25, 1970 Appeal from Patent Office, Serial No. 480,494


Theodore C. Virgil, W. P. Spielman, Roland A. Dexter, Harry H. Kline, attorneys of record, for appellant.

Joseph Schimmel for the Commissioner of Patents. L. F. Parker, of counsel.

[Oral argument March 3, 1970 by Mr. Dexter and Mr. Parker]

Before RICH, ALMOND, BALDWIN, LANE, Associate Judges, and ROSENSTEIN, Judge, sitting by designation.

BALDWIN, Judge, delivered the opinion of the court:

Skrivan appeals from the decision of the Patent Office Board of Appeals, adhered to on reconsideration, which affirmed the final rejection of claims 9-16, all of the remaining claims in his application,1 on the ground of double patenting over his own patent. Claims 9, 10 and 12-16 were rejected additionally as being "unduly broad" under 35 USC 112. We shall consider each rejection separately.

The Double Patenting Rejection

[1] The varying positions taken by the Patent Office during the prosecution of the claims on appeal reflect some of the confusion which existed before, and, hopefully, has since been clarified by, our latest opinions in this area of the law. Restating those positions or setting out the language employed will serve no useful purpose in the disposition of this appeal. We note that a terminal disclaimer

1 Serial No. 480,494, filed Aug. 17, 1965, for "Oxide Process".

2 U.S. Patent 3,275,412, issued Sept. 27, 1966, on an application filed Feb. 4, 1965. In fairness, it must be stated that a number of the opinions referred to were handed down after the administrative proceedings in this case.

has been filed by appellant and was given consideration by the Patent Office. Our only concern therefore, need be a determination of whether any substantive difference exists between the subject matter of the claims on appeal and that claimed in appellant's patent or whether the only difference is in the language of the claims, in other words, whether the differences "are sham or real, semantic or actual.” In re Plank, 55 CCPA 1400, 399 F. 2d 241, 158 USPQ 328 (1968).

Skrivan's patent and the application presently before us are both directed to improvements in the so-called "plasma jet" process for the preparation of metal oxides, such as titanium dioxide, in finely divided form so as to be useful as pigments. That process is broadly described and its advantages summarized in the following passage taken from the patent disclosure:

[0]xide powders, particularly titanium dioxide, [can] be produced without utilization of an auxiliary burning gas and with reduced amounts of nucleating agents by conducting the oxidation of a metal or metalloid salt with a plasma jet generator. By this method, a gas is passed through a high energy electric arc and the resulting plasma (the term "plasma" being employed to designate a very hot, partially ionized gas stream) is contacted with the material to be oxidized and oxygen. The plasma is thus the source of heat for raising the reactants to a temperature at which oxidation is initiated. No by-products of burning are introduced into the gas stream and, thus, problems above associated with the prior art methods are obviated.

According to the patent disclosure, the basic plasma-jet process had certain inherent disadvantages. These disadvantages are allegedly overcome by the process of the patent which, in concept, involves first separately mixing one or both of the reactants with a plasma stream and then combining the two streams after the reactants have, in combination, been heated by the plasma sufficiently to bring them to reaction temperature. The disclosure goes on to state that in order to properly mix the reactants, maintain a relatively constant particle size distribution of the product, and prevent reactor plugging, the streams must be combined at an angle of between about 25° and 160°, preferably between 70° and 120°. An example in which the two reactant streams were made to meet head-on, i.e., to combine at 180° was said to require discontinuation after only 62 seconds of operation "due to the growth of a very hard granular deposit of titanium dioxide" in the area at the point of contact. It is also stated that if the angle of combination is too low the streams will not properly mix with each other.

The disclosure of the application at bar substantially duplicates the patent disclosure. The issue on which appellant and the Patent Office are at loggerheads revolves around the single difference, relat

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