This is an appeal from the decision of the Patent Office Board of Appeals, adhered to on reconsideration, affirming the rejection of claims 1-7 of appellants' application entitled "Sequential Opening Parachute."
The invention relates to a parachute canopy which will sequentially open and thus gradually decelerate. The result of such sequential opening is the reduction of the opening shock force on the parachute and on the load being carried by it. Appellants' parachute canopy is shown, in the fully opened form, in Fig. 1:
The canopy is constructed of a plurality of circumferentially complete panels (15, 17, and 19) of fabric material maintained separated by tie lines (27). The size of the spaces or gaps (21 and 23) between the panels is such that the outwardly disposed panel will sequentially deploy as the parachute's velocity of descent is reduced by the deployment of the prior inwardly disposed panels. This operation is achieved by spacing apart each panel a distance which provides a lower critical velocity, i. e., the velocity at which panel inflation occurs, for each outwardly disposed panel.
Claims 2-7 add various minor details, such as the shape of the panels, etc. Except for claim 7, which is specifically directed to a parachute canopy using ribbon fabric for the panels, the claims on appeal have not been considered individually either by the Patent Office or by appellants.
The first problem it is necessary to settle is what grounds of rejection are before us and which references are involved in those rejections. In the final action, the examiner rejected claims 1-6 under 35 U.S.C. § 102 as anticipated by either Ball,
Ball .................. 1,511,154 Oct. 7, 1924 Mallory ............... 2,472,601 June 7, 1949 Sepp, Jr. ............. 3,240,451 Mar. 15, 1966 Menget (France) ....... 853,261 Nov. 28, 1939
Not too surprisingly, appellants requested reconsideration, inquiring as to whether new grounds of rejection were being made and, if so, what they were. Appellants assumed that the rejection of claims 1-6 under 35 U.S.C. § 103 was a new ground, but they weren't sure which references or combination of references were involved or how the references were being applied. In addition, appellants felt that some of the board's language implied that at least claim 1 was rejectable using Mallory alone (apparently under 35 U.S.C. § 102, although § 102 was never mentioned by the board), which would also be a new ground of rejection since Mallory was not listed by the examiner in his Answer as a reference being relied upon. In re Flint, 330 F.2d 363, 51 CCPA 1230 (1964); In re Corbin, 136 F.2d 713, 30 CCPA 1238 (1943). Likewise, although 35 U.S.C. § 112 was not mentioned, appellants felt that the board intended rejections thereunder (again at least for claim 1) as being based upon an insufficient disclosure and containing functional language. The board's response to appellants' request for reconsideration was:
We will consider only the rejection of claims 1-6 under 35 U.S.C. § 102 as anticipated by Menget and the rejections of claim 7 under 35 U.S.C. § 103 as unpatentable over Menget or Ball each in view of Sepp, Jr. (Sepp). These rejections were clearly set forth in the examiner's Answer; the board did not expressly reverse them, and therefore they are properly before us. In re Wagenhorst, 64 F.2d 780, 20 CCPA 991 (1933). We will not consider the numerous other possible rejections, which may or may not have been relied on, since we do not think appellants were adequately notified of the reasons for those rejections as required by procedural due process and 35 U.S.C. § 132. In re Hughes, 345 F.2d 184, 52 CCPA 1355 (1965); see In re Jacobson, 407 F.2d 890, 56 CCPA 982 (1969). We can see at least eighteen possible rejections (two § 112 rejections, one § 102, and 15 § 103 rejections, taking the various possible combinations of the references into consideration) in the board's opinion. None of these possible rejections was spelled out with any degree of particularity whatsoever, and we certainly can understand appellants' confusion in regard thereto. In addition, the solicitor would also have us consider the three § 102 and three § 103 rejections in the examiner's final rejection, even though they were dropped in the Answer. Appellants have attempted in their brief to guess at what the various rejections were and to respond to them. The fact that they have done so does not bring those issues before us. In re Benson, Cust. & Pat.App., 441 F.2d 682 (1971). If we were to consider all those issues on this appeal, we would be doing so without affording appellants an opportunity to be heard in the administrative tribunals of the Patent Office. In re Hughes, supra.
After considering the rejection of claims 1-6 under 35 U.S.C. 102 as anticipated by Menget, the reasoning behind this rejection, and the arguments
Menget discloses a parachute canopy as shown in Figs. 1 and 2:
Three circumferentially complete panels or bands (a
The examiner in his Answer took the position that claims 1-6 "define the distance between the panels of the applicants' device in functional terms, and therefore fail to recite a structure different from * * * [Menget]." In response to appellants' argument that Menget seemingly contemplates complete rather than sequential opening on deployment, the examiner stated:
Appellants strenuously contend that the claim language in question (for example, from "such that the critical" through "gradually deaccelerate" in claim 1, supra) is not functional, that a claim recitation of a dimensional limitation and an operational characteristic to achieve a desired result is a positive limitation, and that this limitation distinguishes the claims from Menget since Menget does not teach successive opening
We agree with the Patent Office that the spatial separation between the panels is recited in functional language; however, as we said recently in In re Swinehart, 58 C.C.P.A., 439 F.2d 210, (1971), there is nothing intrinsically wrong with the use of such claim language. The rationale behind the Patent Office's objection to functional language, which rationale seems particularly applicable here, was discussed in Swinehart where this court stated:
This is exactly what the examiner did here. It was the examiner's view that the parachute canopy of Menget possessed all the claimed characteristics, including the capability of sequential opening, of appellants' canopy. Therefore, he challenged appellants to show that Menget's canopy did not inherently possess these characteristics. Appellants have not denied that Menget's canopy inherently possesses the capability of sequential opening. In fact, appellants in their brief acknowledge "that such a sequential opening operation possibly may be achieved by Menget." Thus, since the only alleged distinction between claims 1-6 and Menget is recited in functional language, it was incumbent upon appellants, when challenged, to show that the canopy disclosed by Menget does not actually possess such characteristics. This they have failed to do.
Claim 7 was rejected under 35 U.S.C. § 103 as unpatentable over Menget in view of Sepp. Sepp discloses a ribbon parachute formed of a plurality of spaced radial ribbons. We agree that it would have been prima facie obvious to one of ordinary skill in the art to make the panels of Menget of ribbons as taught by Sepp since it merely involves the substitution of one known parachute material for another. Appellants have not submitted any evidence to overcome a finding of prima facie obviousness.
For the foregoing reasons, we affirm the decision of the board insofar as it affirmed the rejection of claims 1-6 under 35 U.S.C. § 102 as anticipated by Menget and the rejection of claim 7 under 35 U.S.C. § 103 as unpatentable over Menget in view of Sepp.