delivered the opinion of the court:
This appeal is from a decision of the Board of Appeals of the United States Patent Office affirming the decision of the examiner in rejecting claims 12, 13, 15, 21 and 25 to 27, inclusive, of appellants’ application for patent, filed March 16, 1934, serial No. 716,008.
Appellants’ application is for reissue of a patent, 1,882,694, issued October 18, 1932, to appellants, as assignors to The Timken Silent Automatic Company, of Detroit, Michigan, for an improvement in oil burners. As shown by the application, the subject matter of the claimed invention is a device constituting a burner head and mounting therefor. The examiner thus describes the device and its action :
The invention relates to an oil burner (best shown in Pig. 2) of that type in which a x'Otary head is disposed centrally of a hearth and sprays oil to the outer periphery of the hearth, where combustion takes places. * * *
The rotary head is supported by the shaft 18 and comprises the channel member 29, into which oil is delivered by the stationary pipe 26-27, and the oil distributing head 14, through which project the distributor pipes 34 through which the oil is discharged by centrifugal force. Supported on the head is a fan 20, having the disk portion 22 and a peripheral down-turned flange with blades, certain of which are omitted opposite the discharge ends of pipes 34.
The pipes 34 are said to discharge oil through the fan in such a way that the fan blades do not strike the oil streams.
Claim 12 is typical, further ex|Dlains the nature of the device, and is as follows:
12. An oil burner comprising an annular wall, a fan having a disk-like body provided with an annular skirt depending from its periphery, said skirt having a multiplicity of blades projecting outwardly therefrom, said fan being supported for rotation above and in closely spaced relation to said annular wall, a distributor head having radially extending pipes disposed within said fan and terminating relatively close to said skirt, and openings in said skirt opposite said pipes, said openings being spaced from said blades so that oil may'be discharged without interference from said blades.
*933On November 6, 19.34, the appellants copied claims 7 and 8 of a patent to Meilde, No. 1,977,521, issued October 16, 1934, for purposes of interference. On November 14,1934, the examiner finally allowed certain of appellants’ claims, and rejected others, including those here in controversy. These latter claims were rejected on two grounds, first, that they were for new' matter, not included in the original patent; second, on the reference:
Meikle, 1,977,521, Oct. 16, 1984 (issued on application Serial No. 706,456, filed Jan. 13, 1934, as a division of an application Serial No. 291,032, by G. Meikle, filed July 7,1928, entitled “Method of an Apparatus for Producing Combustion”).
On appeal, the Board of Appeals differed with the examiner and reversed him as to his first said ground of rejection and affirmed his decision as to the rejection on Meilde. From that decision, the appellants have appealed.
Both tribunals in the Patent Office held that the Meikle patent, No. 1,977,521, should be given the date of the parent application, namely, July 7, 1928. If given this date, it would antedate appellants’ original patent, dated October 18, 1932. On the other hand, appellants claim that the Meikle patent No. 1,997,521, was based on a disclosure of new subject matter, not found in the parent application, that it was not a true division of the original subject matter, and that, therefore, the Meikle divisional patent was not entitled to the date of the original application, but must be restricted to the date of filing of its own application. The determination of the controversy depends upon this point.
In the parent application of Meikle, filed July 7, 1928, the applicant disclosed a burner head by means of which liquid hydrocarbon fuel was conducted into a revolving breaker member, and from which it was thrown out by centrifugal force in a separated and atomized form to be burned, together with air, upon a baffle structure on the periphery of a hearth. The breaker member consisted of a revolving cup with tubes, and a top, cap-shaped member with a flange covering the saíne, the flange being cut away at places, and being provided with baffles at such points. The liquid hydrocarbon fuel was drawn or forced into the burner head for atomization through tubing 78. As shown by the original drawings accompanying this application of Meikle, these pipes were shown to terminate close to the periphery of the flange, so that fuel might be ejected, free from the interference of the baffles or blades of the breakers.
In the specification of this application, the nature and function of the breakers and their baffles were thus explained:
In order to insure proper atomization of the liquid hydrocarbon fuel and the proper admixture of air for combustion purposes, the nozzle or cup member 16 is provided with a top member 30 that is secured to' the shaft 22 so as to rotate therewith, the top member having an outwardly — and downwardly— *934extending flange 31 which intercepts the combustible mixture emitted from the edge of the nozzle or cup 16 when rotating. For this purpose the flange has segments thereof cut away and is provided with baffles 32. The top members-thus constructed are termed “breakers”, since they operate to effect a more complete atomization of the hydrocarbon fuels and entrainment of air in the process of combustion. * * *
Any convenient arrangement may be employed for this purpose, for example, the disposition shown in Fig. 3 where it is seen that the blades 32 have a direction somewhat inclined to a radius- drawn through its middle point, the inclination of the blades here being such that they respectively lie substantially along the paths of the trajectories of fuel particles when' they leave the lip or edge of the nozzle at the point opposite which the respective baffles, are disposed. * * *
The breakers thus .constructed, perform a three-fold function, namely, first, that of cooperating with the burner nozzle to effect substantially complete atomization of the hydrocarbon fuel projected from the burner nozzle; second, that of redistributing the combustible mixture projected from the burner nozzle in a plurality of horizontal and vertical radial planes instead of in a single sheet; and third, that of entraining air and other gases which are admixed with the combustible mixture projected from the burner. * * *
Here more air may be added to the mixture, the resultant mixture passing out over the nozzle lip at points adjacent the pick-tubes 17 toward the openings in flange 31. In passing through these openings, the fuel particles come in contact with baffle blading 32 where they are further atomized in a plurality of vertical and horizontal planes, * * *.
As this hydrocarbon stream, issuing from the tubing 78, passes through the outer breakers, it is seen to become atomized to provide the combustible mixture desired.
In consideration of this application, the examiner called the applicant’s attention to the fact that his drawings and specification conflicted, stating:
* * ' * Since the tubing 78 extends almost to the outer ends of blading 82 as seen in Fig. 10, it is apparent that the hydrocarbon stream from each tube 78 will be thrown clear of the blades and will not pass through them to become atomized thereby.
The “means” in line 4 are the breaker blades of Figs. 1 to 7 but since the blades of the so-called breaker of Figs. 8 to 10 do not function to atomize the oil this cannot be read on Figs. 8 to 10.
In response to this, on January 23, 1929, Meible filed an amendment and remarks, in which explanatory remarks, he said, in part:
The Examiner’s objection to lines 7, 8,- and 9, page &, is also noted and a word of explanation is thought to suffice.
In the present invention, a sheet of fuel is not thrown out as in many burners of the prior art. Instead globules are thrown off from the lip of the burner cup which are mechanically atomized still further by the blades 32 and then thrown radially outwardly as very fine particles.
The description at the bottom of page 12 has also been amended to- avoid the objection noted. The objection to the description of Fig. 7 is believed to be avoided.
*935The objection to tbe disclosure on page 14 isi also believed to be taken care of by tbe above remarks, when it is remembered that tbe fuel here at no time is a continuous sheet but a plurality of particles. As a consequence, tbe blad-ing 82 shown in Mg. 10 does cooperate in atomizing tbe fuel as above explained, although tbe larger portion of this blading is employed in moving air. * * * The Examiner has correctly construed the means referred to in line 4 but is mistaken in assuming that the same element is included twice in his construction of the claim as to the means in line 5. The means referred to in, line 5 comprises the holes at 34 together with the blades 32 in Eig. 1.
. On September 26, 1929, the examiner repeated his rejection, saying, in part:
The objection of record to page 14, last three lines, is repeated. Since the oil does not contact with blading 82, the blading cannot atomize the oil.
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However, in Figures 8 to 10, there are no means associated with the head for atomizing the fuel since, as above brought out, the fuel is thrown clear of the blades 82 in Figures 8 to 10.
Thereafter, on March 19, 1930, the attorneys for Meikle made the following request to the office:
It is requested that the drawing in the above entitled case be amended, and that the draftsman be instructed to make the following changes:
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In Figs. 8 and 10, it is requested that the tubes 78 be shortened and the baffle structure 82 be indicated as in front of the same, as indicated in red in the accompanying sketch, in order thereby that the drawing may correspond with the description in the specification and claims.
Meikle also filed an affidavit on March 19,1930, under rule 76 of the Patent Office, in which affidavit he said, in part:
The breaker blades interposed in the path of the fuel globules further atomize the particles by collision, and since these blades are in a state of relatively rapid rotation, a field of force operates across them, so- as to cause the fuel particles to flow along the same in a direction substantially radial with respect to the rotating fuel cup. * * * and I have noted that the fuel particles when they collide with a breaker blade, disintegrate into a number of smaller particles which tend to spread themselves along the vertical edge of a rotating breaker blade, * * *. Each breaker blade operates in substantially the same manner. On account of the collision of the stream of fuel particles with the edge of my burner cup, breaker blades are only required to be placed along a relatively small are of the circumference of the burner cup adjacent a pick tube, in order adequately to atomize all the fuel projected by the burner cup. I, therefore, use a group of blades associated with each pick tube to accomplish the complete atomization of all the fuel lifted by the burner cup of my invention. * * . *
On December 6, 1930, the proposed change of drawings was made, and figures 8 and 10 were so- changed as to show the tubes 78 terminating back of the outer row of baffles. Thereafter the application was put into- interference with the application of one Heath, which interference, so far as this record shows, is still pending.
*936The conclusion is inescapable, from this record, that in his parent application, Meikle discloses a device in which atomization of the fuel is caused, in part, by contact with breaker blades or baffles and that, to help accomplish this purpose, the conductor tubes deliver the fuel from a point back of the outer blades.
' A further consideration of the record makes it quite evident that Meikle departed from this disclosure in his divisional application and patent. Here he filed, as a part of his application, copies of the drawings originally filed in his parent application, showing the conducting tubes terminating near the circumference of the breaker head, substantially flush with the periphery of the breaker blades. In his specification he says, in part: .
* * * As this hydrocarbon stream or jet, issuing from the tubing 41, passes through the space or gap between a pair of the outer breakers, it is seen to become atomized to provide the combustible mixture desired. * * * This baffle structure is disposed to function in a three-fold manner, namely, to deflect the impinging gases upwardly; to retard the gases in their course upon impingement; and to store heat.
In.our view of the case, Meikle’s disclosure, in this respect, was of new matter. Here he sought and obtained a patent upon subject matter which he had disclaimed in his parent application. It is our opinion, on examination of said parent application, that, at the time it was filed, Meikle had no conception of the invention here involved. Certainly, therefore, his divisional patent should not be given the date of the parent application. The examiner makes the following suggestion, which, apparently is approved by the Board of Appeals:
* * * While it is true that Mgs. 8 and 10 of the Meikle application Serial No. 291,032, were later amended to show a construction which does not agree with the device shown in the patent, the figures! in the patent drawing agree in all respects with the drawings as originally filed in Meikle’s application Serial No. 291,032 (being Mgs. 1, 8, 9, and 10 thereof), and it is held that the changes made in Mgs. 8 and 10' of the above drawings were improperly made. Meikle is within his rights in correcting an error made during- the prosecution of his parent application; the filing of his divisional application is a partial correction to be completed by subsequent restoration of the drawings and specification of the parent application to their original forms.
This, apparently, is an attempted confession and avoidance on the part of the Patent Office. If the office was right in requiring amended drawings in the parent application, and we think it was, it is wrong now. Nor have we been advised that it was legally permissible to amend a parent application by the filing of a divisional application.
The Solicitor for the Patent Office relies upon Writer v. Kiwad, 20 C. C. P. A. (Patents) 869, 63 F. (2d) 259, as supporting the decision of the Board of Appeals. As it seems to the court, that *937.case' is clearly distinguishable from the case at bar. In the case cited, in Kiwad’s original application, he showed two separate structures for making hats, and division was required by the examiner. Kiwad cancelled out the claims, drawings, and descriptive matter relating to one of the species. The court held that he had not abandoned the invention as to this species thereby, but might have the benefit of the date of filing of the parent application in further proceedings, as to- the divisional application. This differs much from the case at bar wherein a disclosure originally made in a drawing is voluntarily corrected as being improper and another form ■substituted, in order to procure allowance.
The decision of the Board of Appeals is reversed.