*1 rеference, separate discussion utilizing capacity in that
jection Prince unnecessary. is affirmed. board decision attorney Slough, Ohio, Cleveland, J. H. Affirmed. record, appellant. C., Cochran, Washington, Wm. D. S. Patents; Fred
for the Commissioner of Sherling, Washington, C., coun- W. D. sel. BALDWIN, RICH, ALMOND, Before Judge, LANE, Judges, RE, Application of Wilbur E. SHEARMAN. Court, sitting Customs United States Appeal Patent No. 8373. designation. of Customs
United States Court BALDWIN, Judge. Appeals. Jan. appeals from Shearman the decision Appeals
the Patent Office Board of affirmed the of claims 1-3, 6, 7, application1 12 and 13 of his unpatentable over the art. THE INVENTION Appellant’s invention is a ceramic enclоsing of a measuring use in of molten in a melt- metal ing furnace.
Figure drawing 1 of the illustra- tive:
This figure shows an outer sheath 21of refractory composition which ceramic includes an outboard end configuration cylindrical inboard and an shape. 21 of end through portion 25 The end extends fur in a 12 of a met to hold molten ferrous nace projects al and the conical from the inner face” surface , 444,668, “Thermocouples” 1, 1965, April No. entitled claim stands Serial filed allowed. *2 590 2, 3, 1 chamber. 6 and differ from claim into the furnace Claims 7
the wall temperature sensing reciting comprising other at least of certain means one features, composed dissimilar sheath is such as that 16 a piece”, en- inner junction providing at “formed a hot metals disposed portion is “of in a ceramic sheath cased protective form”, sheath exterior bore within a central pref- increasing “gradually diameter is of The sheath is described sheath. erably gradually tip portions in- form from the thereof of conical and depth tersecting” increasing from a Claim furnace wall. cross-sectional adding dependent tip intersection on lim- its end 23 to at wall itation that sheath hot face of the furnace with the substantially allow serted within melt is is said 24. This construction high tempera- its monitoring wall at its than at lessеr thickness continuous long- melting much with the cover. intersection tures in furnaces periods possible than with er couples protective are THE REJECTION “heavy uni- tubes wall thickness.” rejected form Claims 7 were unpatentable Krieg2 in over view modification, mount- sheath In a Levy3 under 35 U.S.C. 103. § over fits ed in ceramic cover which a rejected anticipated by un- coni- in the furnace wall. der jected claim 13 was 35 U.S.C. § rather cal inboard on under 35 view being cham- located in the than 103. U.S.C. § proper, disposed in tunnel a ber opening, which tunnel formed patent to a thermo- relates directly the chamber communicates couple tubes well installation in the of the furnace. petroleum are of heaters oils high temperatures for crack- raised illustrative: Claims ing Figure pat- distillation. 1 of the refractory protective A ceramic 1. reproduced ent below: sensing temperature means ferrous to be inserted a container, inmelt a said sheath
metal having portion disposed within a first and a second wall of said container portion projecting beyond melt, said into the face” said wall substantially portion having a second tip than lesser wall thickness at its “hot face”. at its intersection said 12. A cover for ferrous melt con- having wall tainer thereof, tunnel refractory protec-
a ceramic encasing temperature tive sensing having adapt- device toed be inserted said said melt portion being disposed entirely within
and surrounded said said sheath encased on cover device mounted closing said tunnel. August 2,382,888, 2,135,720, issued U. S. Patent November 3. U. issued S.
59] forging anticipated drawing, holding As can seen permits by Levy, oil passage the examiner stated: contains a 5. Thermo- tubes 4 and flow between patent ferrous melt discloses 8, having passage internal (26 (13) having a tunnel container thermocouple wires, has receive (pipe nipple 27) in a and a cover *3 opening in an end mounted an outboard (21) 32). a The sheath ceramic forging and inboard end in the an to be inserted extending passage. The inboard into the furnace, of that heated area tapering conical or end is of a sheath the section of “pit- shape. shape to avoid This is said extending through entirely sur- and affected, ting, corrosion erosion This tunnel surrounding oil,” occurred that hot probe require that entire does * wells, thermocouple which in art by surrounded tunnel be Krieg usually “a were made of states portion thereof, merely a hemispherical hemispheroidical form.” or [Emphasis Levy clearly in shows. original.] patent a thermo- discloses The metal-heating couple in a installed device limita- held additional examiner The Figure 1: shown in furnace as regarding shape the sheath tion by Krieg. in 13 to made obvious affirming, specifically the board
In position. adopted the examiner’s
OPINION
Appellant first contends Krieg nonanalogous art relates to be a thermocouple installаtion cause the well thermocouple comprises tempera- a is for oil heaters there disclosed tubes of ce- in a ture-sensitive element encased melting for metal. rather than furnaces through ramic tube 21. tube extends The contention, answering the exam wall, opening an in the Krieg’s pointed to оf the iner disclosure plate wall consists a heat back prevention pitting, corrosion ero sulating member and a wall member sion of the thermowell and referred to opening insulating The member appellant’s board brief before the designated larger opening in pointing out dif are same these designated the member 18 is 27. Suita- appellant dealing ficulties with. hardware, including nipple ble examiner then stated: opening threaded in the in the wall Krieg clear, therefore, that both opening seals the latter ther- about dealing appellant and the mocouple. thermocouples construction to be respect With to claims high used baths considered examiner the recitations problems since the are the involved shape and relative thickness were metals, same oil and both molten Krieg’s thermocouple or well applicable is an reference. Acknowledging sheath. does specify examiner, оr reasoning material his of the regarded Levy by appellant, satisfies controverted making refractory it obvious to use a to utilize us that it would obvious employ ceramic Krieg’s teaching thermocouple material and to sultant end well structure such a furnace refractory improve performancе.4 furnace. Appellant argue appellant appealed does mitted after had obviousness this case is refuted the board refused consideration "Wallace, explanation of one affidavit John F. sub- the examiner for lack within the of a ceramic is located The selection tunnel 27 cоnfines of the such as encloses
material patent shown the furnace wall of that as the material high portion adapted inserted of the is “a to be view well would be obvious melt, temperatures melt would within” since the involved. expected tunnel to extend into the agree Krieg discloses the We also That case where it is not closed.6 claims. features structural these Levy thermocouple is also “generally g., exte- Thus, e. entirely “disposed within and surround plainly dis- rior form” by” ed the tunnel. The hardware at description Krieg by closed in Levy thermocouple, in outer end of the gradually having taper of ac- well as “a cluding niрple 32, answers the broad terminating celerating degree, *4 requirement 12 can of a cover. Claim drawing Also, Krieg’s point.” the shows requiring interpreted that the not be projecting tapered portion (instead in the tunnel be the cover liquid from “be- material into the heated wall) appellant does not since himsеlf yond More- wall.” the ‘hot face’ of [the] meet a construction which would disclose supra, over, Figure Krieg, shows 1 of interpretation. such an passage “internal what is described as an thermocouple to wires” the receive that, by readily apparent should be It cylindrical shape bore. be in the of a device, by Levy reading 12 on the shape cylindrical results itself, properly) (quite was the examiner meeting require- the claim language indicating appellant to that substantially ment that the sheath have subject mat chosen to define the he had tip its at its than at lesser wall thickness regarded his invention ter he which or “hоt the inner wall intersection with reasonably be so that it could was broad face”. subject disclosed read matter to include 12, pointed we are satisfied out re As to claim in the art. As we 904, anticipation substantially Levy Borkowski, cently, is 422 F.2d in In re quoted (1970), of a reasons examiner is but this particular, error ways find no above. wе the breadth number which Levy’s position portion language in the is criticized.7 (relying why presented it earlier shown of a feature not statement drawings prevents Office Rule 195 and Section on Patent from in the M.P.E.P.). 1207, held this being The board con- an alternative a disclosure of opening be matter of the examiner refusal is where the struction by peti- ingress open reviewable the Commissioner on is to the closed but appellant therefore tion and not the board and melt. Further evidence presence recognized did not consider the affidavit. We find a dis- such position appears argument in that reversible error in his closure will It not consider affidavit either. is ceramic tube [21] brief that “[t]he noted, however, spaced affidavit wall of the [the therefrom back carry weight would little event wall 18 of the back and/or essentially muffle, since it no more than there- has the length throughout statement of a conclusion that in- therecf.” in] supporting vention is unobvious with no recently 7. also observed that when It was reasons which rebut rea- examiner’s rejections mainly this, which arise such as contrary. holding sons for to the imprecise from of the claim nature made, language, com- it would be language 5. This is the of claim 3. Other specific if nature mendable language claims use differеnt to define expressly pointed objection out. were also essentially concept. the same 1251, Benson, See In 418 F.2d re opinion). (1969) (Dissenting does state in- “[i]n most CCPA 797 stances, opening Here, course, appears 27 around tube the examiner objections perfectly is closed and sealed his clear have made nothing interpreted explanation insulation” there is to show of how he his appellant language. has ever contested that the claim mocouple presents a is held however, its sheath. requires place bolts Claim 12 claim 12 issue. While different “temperature thermocouple literally only аn a sheath —the entirely portion disposed device”—have intermediate * * * inner end ex tunnel and within past the confines melt said tends serted within entirely as includ disposed refers to that and sur- claim 13 within [My ing inher tip. claim thus latter *. rounded said tunnel ently of the sheath requires emphasis.] tunnel rather than extend within the clear from this means is What past would just it. that condition Since (which Thermocouple looks merely covering the arise from 22 in Levy’s) bore located like of which front end the conical rejec suggests, which the “disposed entirely and sur- tion of claim 13 must reversed. “por- by” That is tunnel 15. is “in- tion” of the as to claims The decision is affirmed serted within said melt.” аnd reversed as type measures of this claim 13. end, appellant temperature at its front Modified. *5 clear, the because that is where makes Fig. 1, junction” ma- is. 17 in See Judge part). (dissenting RICH, in jority opinion. agree Judge 12 I Lane that claim with possibly plain from is as be it can Levy. anticipated by not is “portion” Levy’s Fig. of his 1 that the majority opinion forth claim The sets with- is 20 that “inserted 12, says, “As to claim we 12 ap- in melt” is—as is the ease anticipation Levy is an satisfied extending pellant front end —its quoted of examiner as the reasons the outwardly of the from wall 18 the back quota- is to above.” Reference made (furnace), particularly “free muffle explain tion from the examiner. I will 12 cannot of the tube 21.” Claim end 22 disagree why I the examiner. anticipated on, not read is be hence course, “Anticipation,” requires portion, is by, because that every claim limitation each “dis- not said melt” is “inserted within is reference disclosure posed entirely within surrounded (Lеvy). majority opinion The contains (my emphasis) 12 as claim said tunnel” drawing. special no Where requires. tunnel at all. It isn’t meaning given has been to terms of open- aligned construes The applicant, to words are 13, ings 26, in the furnace walls given meaning their common be The “tunnel” of claim 12. to be the specification. of the context application tenor of the shows whole Judge Lane found the term has place molten into which a tunnel is a counterpart “cover” in claim 12 finds no get into metal will can flow. No metal Levy, agree. Certainly pipe I appears to hole and the examiner (32), open ends, nipple is at both not only hole concede much. That leaves “cover” in but that sense the word be “tunnel.” construed as agreed contention, to examiner’s “the 27 around teaches that majority. go But I further. with a 21 is closed and sealed tube Judge reproduced appellant’s fractory under Lane has which hardens insulation Fig. 2, high temperatures operating of the to which his claim 12 is directed. container) (melt securely 2, In holds the tube furnace furnace and Thus, 12, Levy prefera- is wall “tunnel the wall there- wall.” everything bly is of” is is to no rea- the “cover” another right anticipated. except x-y line the ther- son claim is not assuming asserted, give But omission of even the art I is the word meaning regarding in hole it as a sealant broadest attributed to init very “tunnel,” by regarding usage. only ordinary In Third Webster’s segment Levy’s Dictionary (1969), 21 which short New I International following find lies between the two faces wall relevant definition “something “portion adapted to inserted for “cover” noun: plaсed thing.” examiner sus- is within said melt” can the over or about another position. Dictionary distort tain his But The Random House English meaning Language (1969), por- I find the fol- the claim since the * * * * * * lowing: “cover tion intended to extend into the melt n. something covers;” the whole to the left and the verb particular, end form defined as “cover fоllows: front something actually place upon.” where over or None measurement segment place. Levy’s nipple takes on the center these definitions covers placed over, upon, protecting tube would temperature. measure container wall. position, major- Office affirmed By proper no construction ity, Levy’s “cover” on ele- reads Levy, 12 can it made to read on it is I ment believed to incorrect. anticipated, rejec- therefore not and its lexicographic authority know tion under 35 should be U.S.C. § position. reversed. majority opinion appears have anticipation rejection in- transformed an LANE, Judge (dissenting part). and affirmed obviousness majority’s holding I dissent from the it. anticipated by Levy. that claim 12 is 12, and depends from claim *6 holding is, my opinion, Such foregoing equally analysis applies recognized Eng- accord with use of the majority join the claim 13. I therefore language. lish The claim cаlls for 1-3, 6-8, opinion concur as to claims “cover” Illustra- melt container. and dissent the result to claim tive of such cover is the element to claim 12. appellant’s Application FARAH MANUFACTUR- COMPANY, Inc. ING Appeal No. 8361. of Customs States Court United Appeals. and Patent Jan.
Admittedly, only pos- this is not meeting sible structure the term “cover” meaning special in claim Since