# Application of Ellis H. Bryant, Jr

> Court of Customs and Patent Appeals · March 7, 1968 · 390 F.2d 1006

URL: https://www.frixlaw.com/law-library/cases/9453413

## Case

- **Full name:** Application of Ellis H. BRYANT, Jr.
- **Court:** Court of Customs and Patent Appeals
- **Decided:** March 7, 1968
- **Citations:** 390 F.2d 1006; 55 C.C.P.A. 928
- **Precedential status:** Published
- **Opinion:** Dissent by Rich
- **Judges:** Worley, Rich, Smith, Almond, Kirkpatrick
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9453413

## Opinion text

RICH, Judge
(dissenting), with whom KIRKPATRICK, J., joins.
I find no suggestion whatever in the prior art of record that immersing the admittedly old electromagnetic counter of Wollar in oil, as claimed, would enable it to operate accurately at a higher, even double, speed. I therefore find no reason to hold the claimed invention obvious.
The sole basis of the rejection is the Paschen et al. patent (Paschen) which discloses an odometer (distance meter) for railway car axles arranged to run in the axle grease or oil. The patent says the grease or oil acts as a shock-absorbing and damping means and that this has been found to be important in such railway odometers. Presumably this is because the odometer is thus protected from road shocks, not the internal chattering of its own mechanism due to operating speed. I presume this because, as I will show, Paschen did not have a mechanism that would operate at high speed and must have been talking about something else.
The examiner in his Answer practically admitted appellant was right in pointing out that if Wollar’s counter, which is like appellant’s, were inserted in railroad axle lubricating oil, the high speed operation defined by appellant would not be obtained. “This statement may perhaps be true,” said the examiner. He then made the cautious, hedging state *1009 ment that Paschen nevertheless teaches that “operating performance” is improved by placing the odometer in axle oil or grease. So what? This is a far cry from disclosing or suggesting appellant’s invention or discovery or solving his problem.
Appellant’s counter is different in kind from Paschen’s odometer. The starting point is the Wollar counter which has already been engineered mechanically to operate accurately as a counter at 100 counts per second. The invention, it is asserted without contradiction, doubled its speed to 200 per second.
What does Paschen’s odometer do by way of speed? He does not say but a little arithmetic 1 will show. Assume a car wheel diameter of 2 feet and a train speed of 60 miles per hour. — a mile a minute. The fastest moving part of his odometer is a pawl which makes one short stroke per revolution of the axle, turning a ratchet wheel which has about 20 teeth. At a mile a minute, the pawl would move only 14 times per second and the ratchet wheel would make about % of a revolution per second. Prom there on, in the Paschen mechanism, everything is geared down, beginning with a worm gear, and nothing moves with any appreciable speed. It resembles the odometer part of an automobile speedometer. In the roller bearing modification of Paschen wherein a drum counter of the general type of Wollar is present, things move even more slowly, the first moving element in the train being a worm gear, driven at the wheel speed and rotating an eccentric at a much lower speed to actuate the pawl. It could perfectly well operate in “grease,” as Paschen expressly says it does. Appellant’s counter obviously could not, at any rate, not at the speeds contemplated by the claim.
I agree with appellant’s counsel that the rejection is predicated on the “clairvoyance of hindsight,” not on 35 U.S.C. § 103 . The references wholly fail to show obviousness. Paschen teaches nothing at all about increasing possible speed. I would reverse.
. A 2' wheel has a circumference of about 6.3' and will make about 840 revolutions per mile. At 60 miles an hour — a mile a minute — it will revolve 840 times per minute, or 14 times a second. Since railroad ear wheels are likely of greater diameter than 2', the estimate may be on the high side. A speed of 14 times a second is less than y¡ the slow speed of 100 per second which appellant has increased by his invention. Paschen was not dealing with a comparable situation.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9453413. Public record. Not legal advice.