Application of De Lajarte

• Decision Date: 05 November 1964
• Docket Number: Patent Appeal No. 7237.
• Citation: 337 F.2d 870,143 USPQ 256
• Parties: Application of Stephane Dufaure DE LAJARTE.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

143 USPQ 256, 337 F.2d 870 (1964)

Application of Stephane Dufaure DE LAJARTE.

Patent Appeal No. 7237.

United States Court of Customs and Patent Appeals.

November 5, 1964.

John L. Seymour, Bauer & Seymour, New York City, for appellant.

Clarence W. Moore, Washington, D. C., (George C. Roeming, Washington, D. C., of counsel), for the Commissioner of Patents.

Before RICH, Acting Chief Judge, and MARTIN, SMITH, and ALMOND, Judges, and Judge WILLIAM H. KIRKPATRICK.^*

ALMOND, Judge.

Stephane Dufaure De Lajarte appeals from a decision of the Board of Appeals affirming the examiner's rejection of all of the claims in appellant's application¹ for a glass composition.

The rejected claims 5 and 11 read as follows:

"5. Electrically insulating glass having a composition consisting essentially of the following constituents in per cent by weight

                  SiO2   66.8
                  B2O3    --
                  Al2O3   3.0
                  Fe2O3   1.6
                  MnO     0.6
                  CaO     9
                  MgO     4
                  BaO     3
                  Na2O    8
                  K2O     4
                

said glass having resistance to perforation equivalent to at least about 36 KV in a plate 500 × 500 × 7 mm., at 200° C., under 50 cycle alternating current.

"11. Electrically resistant glass, in particular for glass insulators, having a resistance to perforation equivalent to at least about 20 K.V. in a plate 500 × 500 × 7 mm. at 200° C., under sine wave current of 50 periods, and having a composition consisting essentially of

                  SiO2 + Al2O3                      68-75 wt. percent
                  of which Al2O3 is always present
                  and is lower than 8%
                  Na2O + K2O                        12-15%
                  of which K2O is                    1- 4%
                      and Na2O is not over             11% when Al2O3 is less
                                                           than 4%
                      and Na2O is not over             13% when Al2O3 is
                                                           greater than 4%
                  members from the group
                  consisting of CaO, MgO
                  and BaO                           12-16%
                  of which CaO and BaO are present
                      and CaO is in the range        7-12%
                  Metal oxides of the type
                  of B2O3, Fe2O3, ZrO2, TiO2
                  PbO, MnO, ZnO + fluorine           0- 5%
                  compounds"
                

Appellant indicates that the intended use of his glass is as an electrical insulator. Glass suitable for such use must have high resistance to perforation by high-voltage electric current, particularly when the glass is hot. Appellant states that insulator glass must also maintain its resistivity at high temperatures, have good chemical durability under conditions of use and be free of devitrified or crystalline particles. He alleges that a glass having all of the desired properties can be obtained by making a glass having the composition set forth in the claims. It can be seen from claim 11 that a rather intricate relationship between components is specified. For example, the amount of Al2O3 present must be below 8% but not until the exact amount of Al2O3 is determined can the limits on SiO2 and Na2O be set. The amount of K2O may vary from 1 to 4% but the permissible range of K2O is not determined until the amount of Na2O is established.

In his application, appellant compares what is described as "a prior art glass of a standard composition for electrical insulators" with glasses which conform to the composition set forth in the claims. The prior art glass contains 69% SiO2, 1.5% Al2O3, 14.5% Na2O, 0.3% K2O, 11.3% CaO, 1.5% MgO, 1.3% Fe2O3, and 0.6% MnO. It can be seen that this composition varies from that set forth in claim 11 in containing more than 11% Na2O and less than 1% K2O. The prior art glass had a resistance to perforation of 14 KV in a plate 500 × 500 × 7mm., at 200° C., under 50 cycle alternating current. The three glasses having compositions according to the claims have resistances of 24.5 KV, 31 KV, and 36 KV.

The sole reference is:

                  Lyle  2,443,142  June 8, 1948
                

The stated object of Lyle is to produce an amber glass of pleasing color and good chemical durability. Amber color is obtained by the addition of carbon and sulfur. Lyle states that:

"Prior amber glass of the reduced or carbon-sulfur type is notoriously unstable and such stability as is attained is often transitory. This is to be expected from the combustibility of the basic coloring materials, carbon and sulfur. Consequently, such glass, which is properly colored when partially melted, may lose color and may blister and foam as melting and fining proceeds and may become unfit for use if held very long at high temperatures."

To solve this problem, Lyle uses a composition having the following relation:

S - 2N = K

where S is the weight percentage of silica, N is the weight percentage of alkali and K is a constant ranging from 45 to 60. In Table I Lyle sets forth several examples of his amber glass including the following composition:

                       A
                  ------------
                  SiO2          70.0%
                  Al2O3          3.5
                  CaO            7.3
                  MgO            5.2
                  BaO            1.0
                  Na2O, K2O     12.0
                  CaF2           1.0
                  Fe2O3          0.041
                

The above glass was made from a batch having the following composition:

                        A
                  -----------------
                  Sand               200.0
                  Soda Ash            55.3
                  Raw Dolomite        79.8
                  Nepheline Syenite   48.8
                  Barytes              5.0
                  Fluorspar            3.5
                  Powdered Charcoal    1.0
                

Lyle states that the percentages of sulfur and carbon were omitted from Table I and that sulfur in A was supplied by barytes in the batch.

The examiner, in his letter of May 8, 1958, stated that Lyle "teaches a glass composition consisting essentially of the same oxides and proportions as claimed by applicant, note Table I, composition A * * *." The examiner contended in the Final Rejection of November 18, 1959 and in his Answer that the claims were directly readable on the composition of Lyle. This language would seem to indicate that the statutory basis of the rejection is 35 U.S.C. § 102. The board, however, talked about critical difference which could indicate 103. The solicitor, at oral argument, declared that he did not know what the ground of rejection was and refused to rely upon either 35 U.S.C. § 102 or § 103 alone. Apparently, then, both sections must be considered.

The examiner's intended rejection was apparently a "102 rejection," despite the actual differences which exist between Lyle and the claimed composition. In the Examiner's Answer, the 1% K2O limitation of the claims was treated as follows:

"The composition of Lyle would include the proportional limitation relationship of K2O and Na2O as recited in appellant\'s claim since it is noted in Table II, Composition A, that nepheline syenite is employed as the raw batch constituent for supplying K2O in the final glass composition A, Table I. In the analysis of nepheline syenite, K2O is present in amounts of more than 5%.

"Therefore, in Lyle\'s composition, since .05 of the combined Na2O and K2O total is K2O, the amount of K2O is calculated to be about 1 percent of the total glass composition, thus falling within the range limitation of K2O (1-4%) recited in appellant\'s claims."

The fact that Lyle contains sulfur and carbon in addition to the components specified by the claims was not commented upon by the examiner.

The Board of Appeals affirmed the examiner but admitted that Lyle did not necessarily disclose a glass containing 1% K2O in stating:

"We note that Lyle discloses, particularly in Example A (table II in column 3), that a substantial amount of nepheline syenite is employed in preparing the glass. Although it cannot be regarded as certain as to exactly how much potassium is introduced into the glass composition thereby, there does not appear to be any doubt that the glass composition includes potassium. We find no evidence that there is any critical difference between the amount of potassium in the glass compositions of Lyle and the minimum of 1% specified in claim 11."

The board, as did the examiner, failed to comment upon the sulfur present in Lyle's composition. With regard to carbon, the board stated:

"Lyle discloses that a very small amount of carbon, less than ½ of 1%, is employed in the preparation of his glass composition A. In our opinion, it would not be expected that the presence of this small amount of carbon would substantially alter the electrical resistance of the glass

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