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United States Court of Customs and Patent Appeals, August 11, 19611

[Affirmed.]

APPEAL from Patent Office, Interference No. 88,122

Floyd H. Crews, Darby & Darby, for appellant.

H. F. McNenny, D. W. Farrington, Richey, McNenny & Farrington, for appellee.

[Oral argument March 16, 1961, by Mr. Crews and Mr. McNenny]

Before WORLEY, Chief Judge, and RICH, MARTIN, and SMITH, Associate Judges, and Judge WILLIAM H. KIRKPATRICK

Rich, Judge, delivered the opinion of the court:

This appeal is from the decision of the Board of Patent Interferences awarding priority to Wiltshire on two grounds: (1) that Daley et al, could not make the count in interference and (2) that Daley et al. derived the invention in issue from Wiltshire.

Wiltshire, the junior party, appellee here, was employed by Apex Electrical Manufacturing Company (hereinafter called Apex) to whom the application involved was first assigned, a later assignment being to the White Sewing Machine Company which purchased Apex in 1956. Wiltshire's application, Ser. No. 362,898, filed June 19, 1953, is entitled "Pressure Vessel and Method of Making the Same." Horace S. Daley and Lawrence J. Talarico (hereinafter called "Daley" for short), appellants here, are the senior party by virtue of their application Ser. No. 324,344, filed December 5, 1952, entitled "Spherical Container for Fluid Medium Under Pressure With Winding and Method of Applying the Winding." It is assigned to Specialities Development Corporation, a subsidiary of Walter Kidde & Co., Inc. (hereinafter referred to as Kidde), the employer of Daley and Talarico.

The single count is directed to a reinforced spherical pressure vessel for storing fluid such as compressed air, under high pressure (3,000 p.s.i. working pressure). Generally speaking it may be used as an accumulator or merely as a storage vessel, and more particularly the record shows that the parties developed their respective vessels for holding compressed air which feeds the combustion chamber in a jet engine starter system for military aircraft. Although the specific devices of the parties are in some ways dissimilar, broadly they have certain elements in common which form the basis for the count. Each vessel has an air-tight, spherical inner shell reinforced by windings to increase both the strength-to-weight ratio and the resist

1 Released November 28, 1961.

*United States Senior District Judge for the Eastern District of Pennsylvania, designated to participate in place of Judge O'Connell, pursuant to provisions of Section 294 (d), Title 28, United States Code.

ance to shattering upon impact of a bullet or the like. More specifically, the windings follow a particular pattern which contributes particularly to shatterproofness. Each vessel has the usual fitting for connection to a conduit and each party begins a portion of the winding process by placing great circle windings adjacent and tangential to the fitting which, for convenience, is called a "pole" and is said to be on the "axis" of the sphere. As the winding process continues, the great circle courses move away from the poles and gradually approach the so-called "equator" of the sphere.

The count reads:

A vessel for storing fluids under high pressure, said vessel comprising an inner spherical shell, a fitting secured to said inner shell forming a port for entry and discharge of fluid, said vessel including an outer shell formed of a substantially continuous strand of flexible material wound about the inner shell in a plurality of layers of windings, each winding at least inboard of the fitting substantially following a great circle path and the innermost winding extending from a zone adjacent said fitting to a zone diametrically opposite said fitting and succeeding windings having progressively lesser extent between said zones.

"Inboard of the fitting" means inward of the flange of the fitting, in a direction toward the equator and away from the poles. It is apparently a negative limitation, when used with "at least," to exclude those strictly non-great-circle windings which Wiltshire uses to hold his fitting in place and prevent it from blowing out when the vessel is charged. "Lesser extent" means that the plane in which a great circle winding lies makes a larger angle with the axis passing through the poles and as this angle increases the windings lie in a zone which is bounded by a lesser axial distance from the equator. In other words, if the sphere were the earth, the "innermost" layers of windings would be parallel to the meridians, passing adjacent to the north and south poles and covering the entire globe. The intermediate layers of great circle windings would not cover the frigid zones and, finally, the outmost layers would cover only the equatorial and torrid zones.

A brief consideration of the machines for winding the pressure vessels of the parties will make the pattern more apparent. The Wiltshire pressure vessel, as disclosed in his application, has a rubber inner shell much like the ordinary bladder of a basketball or the like, and a valve. A temporary, low melting point metal alloy, spherical core, which later is melted and poured out, supports the rubber inner shell while it is being wound and the winding begins by rotating the sphere about an axis passing through the fitting. Simultaneously,

This merely means that the winding lies in a plane which passes through the geometrical center of the sphere.

a traverse arm oscillates from one pole to the other, feeding and guiding strands of glass fibers which have previously been saturated with a polymerizable resin in its liquid phase. The time for one oscillation of the traverse arm is just slightly less than the time during which the sphere makes one complete revolution. The length of the traverse arm stroke determines the extent on either side of the equator that the sphere is covered by windings and, by gradually decreasing the stroke of the arm as layers of winding are being wound, the extent of the surface covered by the windings being applied is gradually decreased. A covering about 3 inch thick has many great circle windings each lying in a different plane. Since each successive individual winding or convolution overlies the next prior winding, as the winding progresses a visible ridge is formed on the surface of the sphere which spirals from each pole toward the equator due to the progressive shifting of the winding positions.

Daley's pressure vessel is a relatively heavy-walled welded steel sphere upon which piano wire has been wound. In Daley's winding machine, the sphere is supported along an axis which passes through a fitting, and a feeding arm or flyer rotates around the sphere, wrapping strands of piano wire in great circles. The winding process begins with turns passing adjacent the fitting. By slowly rotating the sphere around an axis passing through the fitting, a layer of individual windings or convolutions surrounds the exterior of the spherical metallic shell. Then, as winding progresses, the polar axis is gradually tilted with respect to the plane in which the feeding arm rotates, so that the great circle windings gradually approach the equator. As in Wiltshire's sphere, a spiraling ridge running from adjacent each pole toward the equator necessarily results from the winding process. Except for this ridge, the exterior appearances of the spheres of the parties are quite different because Wiltshire's resin-impregnated glass fibers form, after curing of the resin, a solid shell of windings whereas in Daley the wire, being stronger and heavier than the Wiltshire glass fibers, is not wound as densely and, as the wires do not become consolidated, the exterior "shell" resembles netting or a sort of thick wire mesh structure having substantial voids between the individual wire strands.

The complexity of this interference is indicated by the size of the printed record which has 984 printed pages, in addition to which there are hundreds of exhibits.

[1] We shall first dispose of the right to make issue. The language of the count was patterned after Wiltshire's claim 19 and was suggested to both parties by the examiner. Both parties made it. During the motion period both parties attempted to change the count

or add additional counts and each party moved to dismiss on the ground that the other could not make the count. Only Wiltshire's motion to dismiss on the ground that Daley could not make was decided at final hearing, the board granting that motion. The other motions, involving points not ancillary to priority, were not entitled to review at final hearing.

The examiner, of course, was of the opinion that Daley could make the count or the case would not be here. On the motion to dissolve, appellee's argument was, inter alia, that the count limitation to "an outer shell" finds no support in the Daley disclosure of a wire winding. There were four other arguments but this was the only one the board accepted. In doing so the board recognized that the total limitation as expressed in the count is "an outer shell formed of a substantially continuous strand of flexible material wound about the inner shell." It refused, however, to read this as being satisfied by the winding alone and held that the term "shell" required something to hold the winding in place, such as "bonding, soldering, welding, stapling etc." though not requiring resin bonding as disclosed by Wiltshire. The board's view was that there was no "shell" unless there was a "wall capable of standing by itself and capable of being cut in sections identifiable as sections of a shell."

[2] In view of the well settled rule that a count is to be construed as broadly as is reasonably possible, a rule recognized by the board but, we think, not applied by it, we are of the opinion that such a restrictive meaning cannot be given to the word "shell." The count calls for a shell "formed of a substantially continuous strand of flexible material wound about the inner shell," and those are the identical words used by Wiltshire in his claim 19 where the count [3] originated. Even if we construe them in the light of the Wiltshire application, as the board felt it must but which we think is unnecessary for want of any ambiguity, they do not require a wall which will either stand by itself or which can be cut in pieces identifiable as sections of a shell. The count makes no reference to either of such concepts. We believe the board has read into the count something which is not there. A shell formed of a strand of flexible material is not necessarily capable of standing by itself or of being divided into discrete sections, and a shell so made is all the count calls for. We regard the above italicized clause as a modification of the term "shell" which has a bearing on what is meant by the term, which meaning is not necessarily that usually accorded to it. Wiltshire's "shell" as defined is made only of windings and we see no reason why Daley's outer covering "wound about his inner shell" is not equally entitled to be called an "outer shell."

62959463

The board's holding that Daley cannot make the count must be reversed.

[4] There remains for consideration the other ground of the board's award of "priority" to Wiltshire, derivation of the invention from him by Daley. To keep the matter in proper perspective, this is not a question of "priority" except in the loose sense of that term as customarily employed in interference proceedings. The issue is more accurately described as the question of originality. Did Daley originate the invention of the count or did he derive it from Wiltshire through acquisition of knowledge of what Wiltshire had done as the board held he did?

[5] As indicated by the reference above to the size of the record, much has been said on the subject. In essence the finding of derivation is a decision by the board on questions of fact, what had Wiltshire done, what did he have, and what did Daley find out about it before the date on which he is entitled to rely. Our approach to this issue must, therefore, be on the basis of the law as typically stated in Beall v. Ormsby, 33 CCPA 959, 966, 154 F. 2d 663, 667, 69 USPQ 314, 319, another originality case, wherein it was said:

It is elemental, of course, that this court will not reverse the findings of fact made by the Board of Interference Examiners unless convinced that such findings are manifestly wrong.

It is appellants' burden to convince us. Notwithstanding the broad and emphatic assertion of appellants' counsel that "There is no evidence in the case to support this holding and there is positive evidence to the contrary," we are not so convinced. The board found considerable evidence to support its decision and devoted, in two opinions, a total of 25 pages to discussing it. While it is not to be expected that any discussion of this length could be produced without a flaw, it is scarcely so unsound as to justify appellants' criticism that the board's opinion reflects an "abberation," is "shocking” and "incredible." We cannot condemn the board's conclusions as to ultimate facts as manifestly wrong on the basis of a few statements about its own thought processes in reacting to the evidence, which appellants have selected for criticism. It would be strange, indeed, if no inconsistencies or minor errors could be found in 25 pages of discussion of a complicated record. The question, however, is whether the record as a whole supports the board's conclusion, so that it is not manifestly wrong.

We have carefully considered the board's opinions, the arguments and briefs of the parties, and the evidence. We see no useful purpose to be served by here reviewing in too great detail the entire matter.

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