stored material is sucked through the mouthpiece and at the same time. air is aspirated through the thin pipe therein to entrain the material. The material falls from the hose into the bottom of the container while the air aspirated through the hose passes through the suction pipe from the pump. When the container is filled with material, the valve in the suction hose is closed, suction from the pump is disconnected from the container, the valve in the discharge pipe is opened, and the compressed air side of the pump is placed in communication with the annular pipe and hoses connected thereto. The pump then forces air through the hoses into the container so that the material in the container is loosened up and forced through the discharge pipe to the receiving station.

Randall relates to apparatus for coating webs or strands with dry dust. The coating material is placed in a hopper and is fluidized by air passed up through an "air distributing screen or aerating disk” located at the bottom of the hopper. The material is then entrained through a Venturi mixer having its inlet "directed to face toward the aerating disk" and is passed out of the hopper to a deposition chamber.

Goebels discloses apparatus for conveying pulverulent material which includes two transfer containers. The containers are arranged in parallel and means are provided for successively filling them and alternatively placing them in communication with a discharge pipe so that one container is being filled while the other is discharging.

The sole issue is whether the claimed subject matter is obvious over the prior art under 35 USC 103. Claims 1 and 6 stand rejected as unpatentable over Hermanns in view of Randall, with claim 7 rejected on the same references further considered with Goebels.

The examiner regarded Hermanns as meeting all of the limitations of claim 1 "except for the aerating means in the bottom of the cargo compartment" and considered it obvious from Randall to use a fluidizing means in the bottom of that compartment. He further considered the "diffusor" for the separator tank recited in claim 6 to be conventional separator structure. He held the use of two separators to be obvious from Goebels.

Appellant states that "the important thing to be decided" is whether it is obvious in view of Randall to use a fluidizing means in the bottom of Hermanns' cargo compartment. We are convinced that such modification is obvious and that the rejection of the claims is proper. Appellant refers to "essential differences" which he contends make it "extremely improbable that anyone dealing with large-scale powder transportation should search for and find anything in Randall that could be used to supplement and improve Hermanns' apparatus.' Although the ultimate purpose of Randall is not the mere transpor

tation of materials, he does move powdered material from a storage compartment to a chamber from which it is deposited on a member to be coated. As noted by the board, the pick-up function of Hermanns' suction hose is assisted by air introduced through the thin pipe extending from the mouth of the hose. The board also held, and we think correctly, that such fluidizing action is so analogous to the fluidizing and load introducing action depicted in Fig. 2 of Randall as to make it obvious to provide Hermanns with a bottom connection and pressure fluidizing means of the type shown in the secondary reference. The board considered the diffusor recited in claim 6 to be defined in language which embraces the structure present where a pipe such as the suction conduit of Hermanns delivers material to the container. We think the fact that Hermanns states that material sucked into the container falls to its bottom while the air enters the suction pipe to the pump demonstrates that the construction includes means amounting to a "diffusor" meeting the broad language of the claim. Appellant sets forth no significant argument to the contrary.

As to the use of a pair of separator tanks required by claim 7, such feature is unquestionably made obvious by Goebels.

The decision is affirmed.

386 F. 2d 476; 155 USPQ 586

IN RE FRIEDRICH KARL KNOHL AND NELS NELSSON (No. 7832) PATENTS

1. PATENTABILITY—ANTICIPATION-PATENTS ON COPENDING APPLICATIONS Where patent and instant application are continuations of same parent application, patent does not have status of statutory prior art under 35 USC 102 and 103 in so far as applicant is concerned.

2. DOUBLE PATENTING-IN GENERAL

Characterization of claims as "generic" or "specific" does not necessarily resolve issue of whether inventions defined by claim language are same. 3. DISCLAIMER—IN GENERAL—Double PATENTING—IN GENERAL

Terminal disclaimer does not obviate double patenting rejection where patent and application claims delimit but one patentable invention.

United States Court of Customs and Patent Appeals, November 16,

[Affirmed.]

1967

Appeal from Patent Office, Serial No. 296,280

Olson, Trexley, Wolters & Bushnell, Charles L. Sturtevant (Richard Bushnell, of counsel) for appellants.

Joseph Schimmel (Fred W. Sherling, of counsel) for the Commissioner of Patents.

[Oral argument October 5, 1967 by Mr. Bushnell and Mr. Sherling]

Before WORLEY, Chief Judge, and Judges RICH, SMITH, ALMOND, KIRKPATRICK* WORLEY, Chief Judge, delivered the opinion of the court:

This appeal is from the decision of the Board of Appeals affirming the examiner's rejection of claims 1-3 in appellants' application1 for "Plasterboard Fastening Screw."

The sole ground of rejection is "double patenting" in view of the claims of appellants' patent 3,056,234.2 To place the case in perspective with respect to the numerous other double patenting rejections appealed to this court of late, it is apparent from the letters of the examiner and decision of the board that they regard appellants to be claiming the same invention in their application claims as is defined by their patent claims. Appellants, on the other hand, are of the opinion that the description and claims of their patent contain references to specific details of a "particular species" of appellants' "generic invention" disclosed and claimed in the present application; that there is a "clear line" of demarcation between the "distinctly different" combinations of elements recited in the appealed claims and patent claims; and that, in view of a terminal disclaimer seasonably filed under 35 USC 253 by them and assented to by their assignee, the board erred in failing to apply the decisions of this court in In re Robeson, 51 CCPA, 1271, 331 F.2d 610, 141 USPQ 485; In re Kaye, 51 CCPA 1465, 332 F.2d 816, 141 USPQ 829; and In re Heinle, 52 CCPA 1164, 342 F.2d 1001, 145 USPQ 131.

3

With that background, we turn to a discussion of the application and patent, and the rejections and arguments made.

The subject matter disclosed in both the application and patent is a screw for fastening wallboard to a metal frame or stud member. In the patent, appellants state that the use of prior art screw fasteners to fasten plasterboard to stud members resulted in tearing or bulging of the paper covering of the gypsum core wallboard where is was contacted by the periphery of the screw head. In general, the screw disclosed in each of the specifications includes a tip provided with means, such as a slot, for drilling and threading an aperture in the wallboard and frame member; a shank provided with helical threads and roots

* Senior District Judge, Eastern District of Pennsylvania, sitting by designation.

1 Serial No. 296,280, filed July 19, 1963, as a continuation of application Serial No. 763,228, filed September 25, 1958.

2 [1] Issued October 2, 1962, on application Serial No. 829,838, filed July 27, 1959, as a continuation-in-part of application Serial No. 763,228, supra. That patent, of course, does not have the status of statutory "prior art" under 35 USC 102 and 103 insofar as appellants are concerned.

3 [2] As we noted in In re Christensen, 51 CCPA 1236, 330 F.2d 652, 141 USPK 295, characterization of the claims as "generic" and "specific" does not necessarily resolve the issue of whether the inventions defined by the claim language are the same.

spaced sufficiently far apart axially to prevent crumbling or reaming as the screw passes through the gypsum, the crest diameters of the threads progressively decreasing at the tip or leading edge of the shank; and a head portion designed in a manner to "spin" or "deform" the paper surface of the plasterboard inwardly without tearing or bulging and to enable the head to be embedded within the wallboard for later covering with an appearance-improving spackling composition.

The subject matter is perhaps best understood with reference to the respective claims, to which we have added numerals keyed to the drawings representative of those appearing in the application and patent. Application claim 1 reads (Breakdown lettering ours) :

1. A screw fastener [10] of the type described especially suitable for securing to a support [14], plasterboard panels [18] and the like having covering layer such as paper [12], said fastener comprising

(A) an elongated shank [24] having

(B) a tapering entering end portion providing a work penetrating tip, cutting edge means [34] on said tapering entering end portion and extending generally axially and laterally outwardly from adjacent said tip for drilling an aperture in said panel and support during application of the screw fastener,

(C) and a head portion [36] of substantial outer diameter formed integral with the opposite end of said elongated shank.

(A1) helical thread convolutions [26] having axially spaced apart roots integral with and extending along said shank, said portion of thread convolution extending along said tapering end portion and progressively decreasing in diameter toward said tip,

(C1) said head portion having a clamping section including a circumferential work engaging surface [38] flaring at a relatively small angle with respect to the longitudinal axis of the screw radially outwardly from the shank portion adjacent thereto and flaring outwardly at increased angularity [40] with respect to said fastener axis adjacent to the outer periphery of the head portion,

(C) said outer periphery presenting a circumferential circular substantially cylindrical uninterrupted surface of substantial but limited axial extent and having axially spaced annular margins of substantially similar diameters,

(C) said head portion being provided with a recess [42] extending axially into said head portion and encompassed by the outer periphery thereof for accommodating a suitable turning tool,

(C.) the deposition and extent of said flaring circumferential clamping surface and said outer peripheral head surface of limited axial extent being such as to counteract the tendency of the outer margin of said head portion to shear the outer surface structure of a complementary workpiece, as for example, the paper covering of plasterboard panelling when said head portion embeds itself in the workpiece as an incident to rotation of the fastener.

Claim 6 of the patent reads:

6. A rotary type fastener [13] for use in securing to a supporting member [12] a panel having a deformable inner body [14] as for example gypsum material and an exposed overlying layer of sheet material [15] such as paper, said fastener comprising

(A) an elongated threaded [23] shank [17] having

(B) a pointed leading end [21] for penetrating a panel and supporting member, said point being coaxial with the fastener rotary axis,

(C) and a head [18] formed at the trailing end of said shank;

(C) said head including a terminal section [25] concentric with the fastener rotary axis and having an uninterrupted generally cylindrical surface configuration ["d," Fig. 4] of an axial extent from about .005'' to about .02,''

Ca) said terminal section also having an exposed end surface [24] positioned within the confines of a transverse plane which includes the margin determined by the intersection of said end surface with said generally cylindrical surface, said head being provided with a rotary-driving-tool accommodating recess intersecting only said exposed end surface and extending therefrom axially of said fastener and terminating within said leading section,

(C1) said head also including an uninterrupted leading section having an axial extent ["E," Fig. 4] from said terminal section of from about .06" to about .14" and interconnecting with said terminal section at an angle [“B,” Fig. 4] from about 5° to about 25° with respect to a plane taken perpendicular to the fastener rotary axis and interconnecting with said shank trailing end at an angle ["C," Fig. 4] from about 23° to about 50° with respect to a plane taken parallel to the fastener rotary axis, said leading section having an advancing first portion [33], the surface configuration of which flares gradually outwardly from said shank trailing end and having a maximum diameter greater than the crest diameter of the threads on said shank end, and a trailing second portion [32], the surface configuration of which flares outwardly from the maximum diameter of said first portion at a greater rate than said first portion and terminates at the generally cylindrical surface of said head terminal section, said flaring surfaces of the leading section being concentric with the fastener rotary axis and presenting a smooth spinning and clamping circum