(dissenting).
The issue phrased in the statutory language of section 103 is whether the differences between the invention claimed and the prior art are such that the invention as a whole would have been obvious to one of ordinary skill in the bagging and filling machine art at the time of appellant’s invention.
The principal reference is Gerbe which discloses a bagging and filling machine employing a stack of bags, an enclosure, a bag support underlying a plate member, and an air blast source. The bags are roughly positioned in Gerbe by an enclosure around the closed end and two sides of the stack of bags. The bag support and plate member cooperate to clamp the open end of the bags. Gerbe discloses three alternatives to facilitate opening the bags. Where there is no flap extending from the bottom surface at the open end of the bag, the operator may free the top surface manually or this may be done automatically by a cam arrangement and a cooperating extending metal tab or finger. Alternately, the top surface of the bags may be cut away slightly in the form of a curve so that the plate member clamps only a minimal portion of the top surface and all of the bottom surface of the bag at the open edge.
Heilman discloses an apparatus for filling envelopes employing an air blast. The envelopes are held vertically by a *1021rod which passes through a hole in each envelope flap. The rod is inclined and a follower plate slides along the rod in descending fashion urging the envelopes towards an abutting surface causing a clamping action. The envelope is removed from the rod by tearing the flap portion from the hole to the flap edge.
Rhoades discloses an apparatus for holding a stack of bags in a vertical position employing a piercing point which pierces the open end portions of the bag. A spring loaded member urges the bags into the piercing point and back stop. The bags are constructed with a curved front edge surface so that the piercing point pierces only the bottom surface of the bag at the open end.
I agree with appellant’s arguments concerning the deficiencies in each of the references and combinations of the references. Gerbe does not teach the concept of aligning pins extending from the plate member which cooperate with a flap having holes and perforated flap sections. Appellant’s apparatus is clearly a simplified improvement over the Gerbe apparatus.
Similarly, Rhoades does not disclose alignment means and is no more than a simple wall device for hanging a number of bags within convenient reach. The bags are held by combining the action of the piercing point and friction. It need not be considered further.
The problem lies in determining what Gerbe in view of Heilman taught one of ordinary skill without the benefit of the after acquired knowledge of appellant’s teaching. It is apparent that the rod-follower combination of Heilman requires the force of gravity to operate and will not work in a horizontal position. Further, without the reconstruction taught by appellant the combination of Gerbe and Heilman per se would be nonfunctional. What is required is that, as taught by appellant, only the rod concept of Heilman be extracted and that it then be incorporated into Gerbe. Further, the rod must be made into a pin and then located on the clamping plate so as to extend downwardly therefrom. The concept of alignment, first disclosed by appellant, is not present in such a prior art combination. To meet this aspect, what is required is the incorporation of a double rod system, converted to pins, to provide two points of location. Only after this further modification can the sides and end boxing system of Gerbe be discarded. Only when all this is done do we finally realize an apparatus similar to that claimed by appellant.
What appellant discovered had not occurred to Gerbe, the most recent inventor of subject matter closest to that here claimed. I assume that the Gerbe device is operable. Appellant, however, points out several practical difficulties inherent in the Gerbe construction which appellant proposes to eliminate. The end stop in Gerbe requires a degree of longitudinal rigidity in the bags, lest they tend to crumple against it as the successive uppermost bags are removed. Gerbe thus found it necessary to bow the stack of bags by providing special edge supports to assure such rigidity. Also, the stop is not seen to be of any help in retaining an inflated bag. Since the frictional hold exerted by the tongue of the bag may not be great, it may well yield to a sliding force such as might be exerted by an operator’s thumb on a repetitive basis. Thus, concern is justified that the air blast could blow the bag away before it could be filled. Also, in Gerbe the stack of bags is held by friction only. The success of the clamping action requires that each bag assert a frictional force against the next bag yet the top bag must be easily removed without upsetting the clamping action. The removal of the top bag may well cause several bags to follow thus upsetting the clamping action.
To say that a pin cooperating with aligning holes in a bag flap extension is the obvious answer to eliminating the drawbacks in Gerbe, is, I think, an unwarranted simplification which results only from hindsight reasoning. A com*1022parison of the respective devices clearly indicates the differences between appellant’s device and those of Heilman and Gerbe.
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The problem as I see it is that the simplicity of appellant’s device has obscured the unobvious merits of appellant’s improvement over prior art devices. It is apparent from the above drawings that appellant’s device clearly distinguishes itself from the prior art apparatus. All he has is a spring board, a clamping plate with pins, and an air funnel. The appealed claims to this structure are direct and uncomplicated. Appellant does not have a complicated structure from which he may create limitations for his claims in an effort to distinguish over prior art devices. Rather, his claims distinguish over the prior art by the absence of complicated structure; his claimed invention is simplicity itself in the art of opening and filling thermoplastic bags.
I would reverse the decision of the board.