*1 528 сhargeable fairly percentage Applying plaintiff’s this amount is August expense period It is true that total for the the defendant. overhead damages 1, 1964, August 31, 1965, proving theory $289,252, cost generally it is that contract case is favored. shown overhead allocable safeguards during period proper to the instant contract that
Under where proof up- $113,098. is no has been is evidence shows there better The $30,039 v. United latter was the amount, held. J. D. Hedin Constr. Co. States, 86 347 F.2d 171 Ct.Cl. type expense overhead incurred (1965), F. v. H. McGraw & Co. United day basis, $83,059 in- calendar was States, F.Supp. Ct.Cl. 131 working day on a basis. curred (1955). of the 80- Since it is found plaintiff’s in- direct costs day performance overrun on the contract $297,706, stant amounted contract disruption plain- was caused compared $463,830 all with other plain- defendant, tiff’s work during period performance. work additional percentage tiff entitled to recover its relation the in- between percent. of: stant contract to all work is 39.1 overhead Day Days
Per Amount** $5,321.15 80/350X$30,039= $6,866.01 $85.825 $17,303.95 68/240X$83,059=$23,533.11 $346.079 $22,625.10 Total $37,090 Adding labor costs the extra total results
to the above amount judgment
$59,715.10, should for which
entered. Application of Luke CCPA ld Schiazzano and Joel THORINGTON, Shurgan. Ge ra Appeal
Patent No. 8188. of Customs Court
United States Appeals. Patent
Nov. 1969. ** May 4, page computation presented at its brief filed fn. defendant This
529 City, Coplein, York D. New Gordon record, attorney appellants. for Schimmel, C., Joseph Washington, D. for of Patents. Fred the Commissioner Sherling, Washington, C., D. W. counsel. RICH, Acting Judge,
Before Chief designa- McGUIRE, Judge, sitting by tion, ALMOND, and and BALDWIN Judges. LANE, ALMOND, Judge. appeal
This is an decision of from the Appeals, the Patent Office Board ad reconsideration, affirming hered to on 1, rejection 6, examiner’s claims 1 9,7, 15, 24, 26, appellants’ and 28 in 27 application2 ground of double on the patenting. One claim has indicated been to be allowable.
The invention relates to a noncircular cross-section fluorescent tube pаrticularly providing resides cylindrical generally usual fluorescent with one more grooves or are ro- deformations which along envelope’s tated around longitudinal path axis a curved preferred finite In radius. embodi- invention, Fig. ment of shown below, path the curved is a helix which 2, 5, appellants’ multiplicity, stating that claims 1. view It undue furth that “no 2, for before us 14 and 19 are also er issue as to claims agree status Their uncertain consideration. is before us.” We with the solicitor Rejection Final due to their inclusion arises Rejection the Final later mod was rejections undue based on ified the Examiner’s Answеr exclude patenting. multiplicity 2, 5, 10, on double claims 14 and from the claims, appellants rejections response, elected and there 2, 5, there, including fore is no issue to those claims prosecution. Examiner’s before further this court. only repeated the then Answer 441,411 multi based on undue Serial No. of these claims filed March appellants plicity. appeal, withdrew “Continuous On Non-Circular Cross- Lamp.” and the number of claims Section a substantial holding examiner’s board reversed the substantially more than full turn of one extends is continuous and length along a helix. the entire around *3 major portion along of en- specification points said out that path. corresponding velope in helical its invention be utilized with various having types lainps pressure of fluorescent dif- dis- electric 9. A low materials, radiating elongated, ma- charge comprising ferent tube lamp an starting gases, terials, phosphors straight and generally envelope of vitreous types electrodes, shape, generally of and notes an tubular material of types coatings phosphor of and electron enve- within said ionizable medium starting gas emissive filament-cathodes are well lope comprising inert an lamps present pair mercury inven- known. The quantity and a and a signifi- possess tion are opposite said to several ends of said at of electrodes advantages operating cant as electrical envelope stream to an arc establish advantages, well as discharge therebetween, several mechanical wall the outer envelope least of which increased radia- one least at said efficiency produce due to the increase arc non- to a deformation therein length discharge stream envelope because аrc cross-section circular path generally will follow a helicoidal plane which when transverse longer physical longitudinal stretched out is than the envelope axis where length itself, envelope resulting exists, of the in de- a said said deformation voltage gradient. increased non-circular cross- formation and being thereby produced rotated section reproduced being Claims 1 and 9 are as path a helix around described illustrative: along longitudinal axis for cor- one full turn of the discharge more than 1. An electric thereby path responding elongated helical cоmprising envelope cross-section
generally said non-circular rotate shape, tubular electrode manner, envelope corresponding means in at least mounted within said tending portion and an stream ionizable medium contained of the arc path producing non- therein for helical an arc stream travel potential applied when an electric circular cross-section. means, across said electrode said enve- lan- differ the claims While lope being guage con- formed with indenta- the tube two used to describe therein, being figuration, said indentations are similar claims 6
spaced respects. from each 15 is other and formed Claim claim 9 other along separate except said helical also claim similar paths along specified around and as medium” is not “ionizable longitudinal gas axis, including starting and a each said inden- inert being extending quantity mercury. 24 and 26 tations continuous and Claims 15, rejected phosphor, to 28 are and 26 as additionally call indistinguishable patentably dependent from claim from the 28, claims 27 cross-sec- claim of the while claims 26, respectively recite asymmetric. symmetric rejected over the claim оf tion is 7 and 9 are dis- view rejections, as double-patenting Lemmers. closure of examiner characterized essentially board, follows: as 7, 9, 24 and re- Claims 28 are to 28 24 and 26 1. Claims jected over rejected 35 U.S.C. § under stand commonly-assigned claims of the Olsen distinguishable patentably of Ewest. view disclosure appellants' subject de- matter of claimed relied on are: particularly The references sign patent,- more *4 lamp, Thorington ornamental fluorescent discloses thusly: shown early, “dimples” along straight shows an conventional formed Ewest cy- longitudinal type lamp parallel lamp’s of fluоrescent linés resulting elongated axis in an tubular starting gas, envelope, lindrical inert grooved of noncircular cross- quantity mercury electrodes. staggered “dimples” section. The pressure Lemmers discloses a low dis- produce path sinuous arc charge fluorescent whose ionizable stream. starting atmosphere an inert includes Olsen discloses a machine con- gases. gas or mixture of The reference verting glass type tubes of a such as the spaced plurality indenta- shows also enclosure for a fluorescent into Fig. through question so helicoidal formation and the tubes 6 and сlaims subject formed. The matter Olsen oly by appellants’ secured 12 of Olsen is illustrative Claim *5 patent. follows:
reads as
of
an extension
That there would be
comprising
12. An enclosure
sin-
anyone
monopoly
the
is clear since
having
glass
gle
two
thin
tube
walled
wishing
lamp
fluorescent
amake
wall,
grooves
in its
helical
formed
techniques
the
after
conventional
being
grooves
each of said
entially spaced
circumfer-
expiration
the
would
of
comprising
dis-
instant
confronted
the
still be
lying
respectively
connected sections
patent, so that
claims in a mechanical
along
longitudinally spaced
on and
design
depicted
the
in the
invention
the same helix.
patent
still
unavailable
would
thereafter,
years
patent-
public
many
The board
the
affirmed
the
ing rejections
expiration
above,
notwithstanding
the
summarized
the
of
find-
ing
design patent.
first that:
term the
of
monop-
That this extension
Appellants’ departure
appel-
is that
oly
is likewise
would be unreasonable
envelope
being
lants’
instead of
filing
patent ap-
of
clear for the
two
straight cylindrical'
tube as
Ewest
plications
of some
not
result
was
the
or of a known non-circular cross-sec-
but mani-
administrative circumstance
festly
elongated
tion that defines an
electron
appellants
an effort
was
discharge path,
ah,
inas
Lemmers et
greater patent protection with
secure
straight
form
takes the
of a
tube hav-
patent
patents than either
alone
two
ing one or more helical indentations
give.
of is-
The direct result
would
suing
extending substantially
length
the
of
single
patents
in-
for the
two
envelope
the
or at least of more than
concept
to circum-
would be
ventive
one turn of a helix.
limitation to a
vent the
Its
explained thusly:
rationale was
designed
year
patent and a
term for a
year
term for
so-called “mechani-
view,
granting
In our
the
patent.
cal”
patent
single
second
novelty
on the
feature of
inquiry
set
is also
factual
board’s
providing
of
helical indenta-
out:
tion in an otherwise conventional
lamp
concepts
fluorescent
would
constitute
find that the inventive
We
monop-
design
unreasonable
extension of
and the double
the
ap-
appel-
different orientations
the instant
embodiment
helical
lamp
response
lants’
finds full
in the
Notwithstand-
plication
same.
are the
granted
patent already
appel-
argument
their
ing appellants’
solely
ap-
grantеd
lants wherein this difference in
on
design patent was
lamp
pearance
of the essence.
appearance
their
outer
the
apart
its structure
envelope,
Additionally,
affirmed the
the board
the
function,
authorizes
35 U.S.C.
finding
Olsen,
based on
the
on
granting
aof
have
to fabricate
would
been obvious
just
manufacture,
not
article of
enclosure,
the
or
as defined
case the
appearance.
instant
Olsen,
11 to
into a fluor-
“fluor-
is a
of manufacture
article
usual
escent
internal
connotation
lamp”, whatever
escent
components,
by Ewest. That
as disclosed
time
had at the
have
term
discontinuous
the helices of Olsen are
thereon,
appellants
invented
acknowledged;
board
was
however the
“ap-
just
appear
felt
from the
that “it does
pearance”
one.
record
us that either
con-
before
interrupted
lamp”
tinuous or
forms
at
“fluorescent
The term
any significant
applications for
helices offer
difference
appellants filed
time
their
in function.”
“mechanical”
the instant
acquired
well
design patents
had
Appellants’ petition for
reconsidera-
meaning
dic-
in the
both
understood
requesting
modification
art,
tionary
Subsequent
denied.
board’s decision was
Answer,
pointed
his
out in
Examiner
assignee
this,
appellants’
filed a
contemplated the
such
part
terminal disclaimer as
electrodes,
ion-
features
various
ap-
any patent
term of
issued on the
coatings
gas
fluorescent
izable
extending beyond
pealed application
appellants here
envelope which
expiration
of the issued
date
distinguishing
fea-
contend are
patent.
*6
ap-
the instant
the
tures of
treating
ap
design
Prior
in detail
plication
the
those of
over
pellants’ arguments attacking the sound
patent.
Lemmеrs
the
Furthermore
decision,
consider
ness
the
board’s
we
patent
noncircular
al.
how
et
describes
court, depending
lengthen
request
envelope
their
that
the
cross sections of
upon
granted appellants
on
discharge path
relief
the
the
within
the
merits,
applica
the
either remand the
increased ef-
in an
and the result
improve-
instruc
appellants’
to the Patent Office with
ficiency
so
disclaimer
merely
expunge the terminal
dif-
ment thereover would be
disregard it, or that
path
or
shape
from the record
for this extended
ferent
favorably con
give only
be
terminal disclaimer
apparently
the same
the
will
Although appel
by
efficiency
merits.
sidered on the
found therefor
increased
filed,
An
the Examiner’s
Appellants
not
lants
after
have
al.
Lemmers et
decision, a
any comparative
board’s
swer but before the
our attention
called
right
“reserving]
to dis
appellants’ con-
letter
test data wherein
special
perceive any
claim,”
we do
figuration
an
attains
of the
config-
cause us
which would
efficiency
circumstances
improved
over
expressed
depart
in In
our
by
views
On
Lemmers et al.
uration devised
Heyl,
F.2d
recognized
re
contrary
54 CCPA
Lemmers et al.
Aldrich,
55 CCPA
necessarily provided
re
or
six
the Patent
urged
appellants
sustained
advantages
F.2d
we
where
seven
* *
*
untimely,
consider,
advantage
as
refusal to
Office’s
and the seventh
* * *
prior
appearance
filed
symmetrical
terminal disclaimers
refer
Actually,
here. We will
were
to mention
terminal disclaimers
two
unnecessary
two as one.
are
reasons which
filed for
amplifying
without
on reconsideration.
board
rea-
decisions
board’s
rejections.
sons for
appellants
their disclaimer
filed
Here
on reconsidera-
decision
the board’s
after
tion.
appellants’
shall
We
treat
therefore,
We,
this case
decide
arguments
above,
presented
in the order
no
there is
terminal
on
the basis
setting them out in
comment
detail as we
consideration.
for our
disclaimer
First, however,
provide
thereon.
we
Appellants
reasons
forth several
set
general
regarding
some
observations
support
that the
of their contention
patenting.
area
double
It should now
(cid:127)
briefly,
erred. Summarized
board
appear clear from this
recent
court’s
pertinent points are:
decisions4 in this area that double
holding of
no
1. There can be
patenting rejections usually
one
take
design patent-
patenting in a
forms, namely,
both of two
the “same
utility patent
situation because
type
patenting”
invention”
“double
in:
differences
statutory provision
identifiable with the
origin
(a)
statutory
(35
USC
101, saying
35 U.S.C.
that an in
§
171);
vs. USC
patent, interpreted
ventor
obtain a
meaning only
patent;
one
and the
protected
(b)
subject matter
type
patenting,”
“obviousness”
“double
ornamentality
(utility vs.
judicially-created
grounded
doctrine
legal monopoly;
public policy rather
than statute and
primarily
infringement.
(c)
prevent prolonga
intended to
the tests
monopoly by prohibiting
tion of
claims
2. The
patent
patentably
a second
dis
appeal
dif-
directed to
claims on
are
tinguishing from claims of
first
design
ferent
inventions since
patent. This court has held that a
ele-
fails to
the claimed
show
terminal disclaimer is ineffective where
electrode,
phosphor
ments of
attempted
it is
to twice claim the same
medium, quan-
coating,
an ionizable
invention; however, an “obviousness”
gas
tity
of vitreous
and an
type
patenting” rejection may
“double
material.
by a terminal disclaimer.
obviated
extension
3. There will be no
Appellants contend that there can be
monopoly since
covered
patent-
no double
employed
can be
utility patent situation
because
ap-
infringing
without
different
de-
bases
which
peal.
sign
utility patents
predicated,
namely,
utility
101 for
U.S.C. §
*7
subject
patent
4. The
and
Olsen
patents
design
and 35 U.S.C.
171 for
§
application
inven-
are for different
patents.5
separate provisions,
These
it
compares the inven-
one
when
urged,
subject
is
matter,
in
result
differences in
by
respective
claims.
defined
patentability
criteria of
and
main,
brief,
scope
protection
in
re-
in that 35
U.S.C. §
The solicitor’s
utility
requires
positions
usefulness or
as a
of the examinеr
iterates the
undertaken,
designs
for
not be
Patents
§
4. Extensive
citation will
171.
original
any new,
White,
and
In re
CCPA
Whoever
invents
ut
see
b
design
(1969).
for an article of man-
ornamental
Olsen calls if
ing and even sections disconnected use of render obvious Ewest would lamps, the de- for fluorescent
such tube arising cross-section sired noncircular groove would helical from continuous lacking.
Accordingly, the board decision rejection respect to affirmed with 9, 15, 1, 7, 28 of claims unpatentable over ground patenting, of double respect rejection with
reversed unpatent- as28 and 26 Olsen view of
able over the claims
Ewest.
Plante,
Davis,
Arens,
Herbert L.
Affirmed.
Hartz,
Southfield,
Thompson,
Smith &
Mich., attorneys
record,
appellant.
Judge (concurring).
BALDWIN,
Schimmel,
Joseph
C.,
Washington, D.
agreement
cоmplete
I
with the
am
for the Commissioner of Patents.
Jere
opinion,
majority
wish
take
but
Sears,
C.,
Washington,
W.
D.
of counsel.
position
my
opportunity
re-
to adhere
RICH, Acting
Judge,
Before
Chief
handling
garding the
of terminal dis-
designa-
MATTHEWS, Judge, sitting by
as set
the Patent Office
claimers
tion,
ALMOND,
BALDWIN and
concurring opinion in
re
forth in the
LANE, Judges.
Jursich, 56
taken in such the Board Appeals af- Patent firming Board Office USPQ parte Fertig, cases as Ex of all the examiner’s (1967) parte Deering, and Ex 157 US patent applica- appellant’s ten сlaims in PQ (1967). January 166,316, tion serial No. filed Testing Electri- for “Test Set Apparatus.” We affirm board’s cal decision.
THE DISCLOSURE test Appellant electrical discloses testing adapted particularly com- set 57 CCPA Application of Carroll B. VAUGHAN. plex The form. in module circuits Appeal Patent No. 8201. typically have would module circuits sixty- terminals, g. large e. number United States Court of Customs single plug-in action four, which Appeals. and Patent test set. can be connected to the Dec. 1969. are important of the test set features combinations, by out, brought in various following appealed claims. ap- typical appearing in each limitations pealed claim: testing ap- electrical A set for test paratus having multiple electrical