In re Burke, Patent Appeal No. 3850.
Decision Date | 23 December 1937 |
Docket Number | Patent Appeal No. 3850. |
Parties | In re BURKE et al. |
Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Charles M. Thomas, of Washington, D. C., Richard F. Lyon and Lyon & Lyon, all of Los Angeles, Cal. (Clarence O. McKay, of Washington, D. C., of counsel), for appellants.
R. F. Whitehead, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the Primary Examiner rejecting claims 64 and 65 in appellants' application for a patent for an alleged invention relating to a process of "crystallizing a salt from solution."
Claim 64 is illustrative of the appealed claims. It reads:
The references cited are: Block, 1,006,823, October 24, 1911; Isaachsen, 1,478,337, December 18, 1923; Mumford, 1,790,436, January 27, 1931; Jeremiassen, 1,860,741, May 31, 1932; Ritchie et al., 1,873,329, August 23, 1932.
For the purpose of this opinion, the involved process is sufficiently described in the quoted claim.
All of appellants' process claims, Nos. 64 to 70, inclusive, were originally rejected by the Primary Examiner on the references of record.
In his answer to appellants' appeal to the Board of Appeals, the Examiner stated that all of the process claims were rejected on the references, and that, in addition, the claims now before us on appeal, Nos. 64 and 65, were rejected as "unduly broad," in that they were "not limited as to the character of the salt to be crystallized, and are drawn broadly to the process of crystallization of any salt by means of evaporative cooling and agitation."
In explanation of his statement that claims 64 and 65 were "unduly broad," the Examiner said: "It will be obvious from what has been said above, and from a consideration of the present description that the results here sought are not attainable with any salt at any concentration."
With reference to process claims 60 to 70, inclusive, the Examiner, among other things, said: "None of these are limited to concentration and temperature conditions necessary to obtain the results here sought, except in a very general way."
In his final decision, dated July 5, 1935, the Examiner, in rejecting claims 66 to 70, inclusive, which are limited to borax, said: (Italics ours.)
In discussing the question of whether the references disclosed a solution of substantial saturation, and in holding that they did, the Examiner stated: "in any crystallization procedure it is obviously desirable to obtain the solution in a state which is close to saturation at least prior to performing details of crystallization."
On appeal, the Board of Appeals reversed the decision of the Primary Examiner as to claims 66 to 70, inclusive, which, as hereinbefore noted, were limited to a particular salt — borax — but affirmed the Examiner's rejection of claims 64 and 65 for reasons which will be hereinafter stated.
In describing the invention, the Board made the following statement:
With regard to the references cited and their application to the claims appealed to it, Nos. 64 to 70, inclusive, the Board said:
To continue reading
Request your trial-
Application of Bowen
...be operable in the claimed process. In our opinion, the situation here is readily distinguishable from the facts of the Burke, 25 CCPA 795, 93 F.2d 50, 36 USPQ 64 (1937), Roberts, 113 USPQ 205 (Pat.Off.Bd.App., 1956), Donahey, 126 USPQ 61 (Pat.Off.Bd. App., 1959), and Marzocchi , 58 CCPA 10......
-
Application of Frey
...matter of disclosure, citing our decision in the cases of Buchanan v. Burrage, Jr., 41 F.2d 98, 17 C.C.P.A., Patents, 1194, and In re Burke et al., 93 F.2d 50, 25 C.C.P.A., Patents, 795, and several decisions of the Board of Appeals of the Patent Office. The Solicitor for the Patent Office ......