Application of Echerd, Patent Appeal No. 8776.

Citation176 USPQ 321,471 F.2d 632
Decision Date26 January 1973
Docket NumberPatent Appeal No. 8776.
PartiesApplication of James W. ECHERD and Warren K. Watters.
CourtUnited States Court of Customs and Patent Appeals

Charles B. Park, III, Charlotte, N. C., attorney of record, for appellants; Floyd A. Gibson, Charlotte, N. C., Joseph C. Walter, Washington, D. C., Parrott, Bell, Seltzer, Park & Gibson, Charlotte, N. C., of counsel.

S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; Fred W. Sherling, Washington, D. C., of counsel.

Before MARKEY, Chief Judge, and RICH, ALMOND, BALDWIN, and LANE, Judges.

MARKEY, Chief Judge.

This is an appeal from the decision of the Board of Appeals sustaining the rejection of claims 12, 16, and 17 of appellants' application for "Pipe Lagging Material and Process for Making Same," serial No. 625,604, filed March 24, 1967. Two references, Stafford1 and Gouveia2 are cited.

The Invention

The invention relates to a covering to be wrapped or "lagged" about the outside of insulation on a pipe to hold the insulation in place and thereby protect the contents of the pipe against thermal gain or loss. The characteristics of the material are set forth in claim 12:

12. A flame-resistant, drapable, pipe lagging material characterized by having sufficient flexibility and wet strength to permit the same to be wrapped when wet around insulated pipe surfaces and the like, and having sufficient adhesive characteristics to firmly bond itself to such surfaces upon subsequent drying, said pipe lagging material comprising a porous, woven, textile fabric base, having substantial flexibility in both wet and dry state, and a latent adhesive composition consisting essentially of an inorganic hydrophilic siliceous material impregnated in and firmly bonded to said fabric base and substantially inseparable therefrom through leaching-out in water and through flexure in dry condition, and having adhesive characteristics, when wet, to adhere the pipe lagging material to a surface around which it is wound and, when subsequently dried, to firmly bond and form with said fabric base an adherent, non-dusting covering on such surface.

The siliceous adhesive may be clay, such as bentonite or kaolin, or hydrous magnesium silicate. Claim 16 calls for an "asbestos-base" fabric as the base while claim 17 further limits said base to one containing "at least 50% by weight asbestos fibers."

The Decision Below

The Stafford patent is directed to the manufacture of heat insulating blankets which retain structural strength, flexibility and handleability at temperatures up to 2000°F. The blankets consist of felted layers of mineral fibers, preferably asbestos, with 0.6%-3% by weight bentonite clay uniformly dispersed throughout as binder.

The Gouveia patent discloses an impregnating composition for asbestos materials in woven, non-woven, felt or other form designed to impart increased resistance or repellancy to fluid penetration without deleteriously affecting desirable properties such as flexibility. The components of the treating composition include bentonite clay, an alkali metal silicate, zinc oxide and a silicone water repellent.

The examiner rejected the claims as unpatentable over Stafford under 35 U. S.C. § 103. In his Answer this rejection was modified to include reliance upon the previously merely listed Gouveia patent to show the equivalence of woven and non-woven asbestos fabrics as substrates for siliceous impregnants. Substitution of woven fabric for the "non-woven" blanket of Stafford thus being considered obvious, the asserted differences in properties such as structural integrity and wet strength over the Stafford product were dismissed as no more than the expected consequences of this replacement. Appellants had previously submitted evidence to distinguish the claimed product over Stafford in McCluer affidavit I with attached sample of a specially prepared Stafford product. This was now found wanting in that it failed to present any comparison with the "obvious" modification, i. e., woven asbestos containing similar amounts of bentonite. The opinion advanced by affiant, based on his experiments, that the small amount of bentonite employed by Stafford would not function as an adhesive in the manner contemplated by appellants was rejected on the view that "if it is true that appellants' bentonite is adhesive the same must also be inherently true of the bentonite binder in Stafford."

The board, although sustaining the rejection presented by the examiner, placed new emphasis on the Gouveia reference, stating:

While we agree with the Examiner, for the reasons he has given, that it would have been obvious to one of ordinary skill in the art having the cited references before him to use a "woven" fabric in Stafford, we consider it abundantly evident, and a fact which cannot reasonably be
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22 cases
  • Thompson v. United States, Case No. 1:14–cv–1328 (GBL/MSN).
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    • U.S. District Court — Eastern District of Virginia
    • 20 Julio 2015
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  • MATTER OF APPLICATION OF MEYER
    • United States
    • U.S. Court of Customs and Patent Appeals (CCPA)
    • 7 Junio 1979
    ...35 U.S.C. § 102(b) in affirming the examiner,13 we are convinced that this constituted a new ground of rejection. In re Echerd, 471 F.2d 632, 176 USPQ 321 (Cust.Pat.App.1973). Considering that the examiner expressly stated the statutory ground of rejection was 35 U.S.C. § 103, that he never......
  • In re Hallman
    • United States
    • U.S. Court of Customs and Patent Appeals (CCPA)
    • 16 Julio 1981
    ...settled that there is nothing intrinsically wrong in defining something by what it does rather than by what it is. In re Echerd, 471 F.2d 632, 176 USPQ 321 (CCPA 1973); In re Swinehart, 58 CCPA 1027, 439 F.2d 210, 169 USPQ 226 (1971); In re Fuetterer, 50 CCPA 1453, 319 F.2d 259, 138 USPQ 21......
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