In re Burke, Patent Appeal No. 3850.

Decision Date23 December 1937
Docket NumberPatent Appeal No. 3850.
PartiesIn re BURKE et al.
CourtU.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.

HATFIELD, Associate Judge.

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: "64. A process of crystallizing a salt from solution, which process comprises passing a solution of said salt into a crystallizing zone in which a body of said solution is maintained under a pressure below atmospheric sufficient to evaporate said body of said solution and cool the surface of the body of said solution at which said evaporation is taking place through removal of heat of vaporization while continuously subjecting the body of solution within said zone together with crystals present to a circulation to and from the evaporating surface of said liquid at a rate substantially in excess of the settling rate of the crystals present."

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: "Various details of distinction are drawn from the references. Thus it is contended that the references are not specific to the crystallization of borax; in this connection it is submitted that details of crystallization of borax to accomplish a given result have not been shown to be essentially different from the details resorted to for purposes of general crystallization as applied to substantially any given salt." (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: "The appealed claims relate to a method of producing crystals of salt of predetermined and uniform size. Applicants broadly associate the feature of subjecting a solution of salt to partial vacuum at its surface and at the same time so agitating the bath that salt crystals as they be-ing to form are kept suspended by means of an impeller at the bottom of a relatively deep bath of solution under such conditions that the crystals rise at the center of the bath and descend at the sides. New solution is introduced at the bottom and the sludge of solution and crystals is withdrawn from the top of the bath."

With regard to the references cited and their application to the claims appealed to it, Nos. 64 to 70, inclusive, the Board said:

"The examiner relies upon several citations but it appears that the situation presented is that the features are not shown in association in the same method. It is well known to subject solutions of salt to a cooling and concentrating effect of reduced pressure over the surface and it is known that circulation or other agitation of...

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2 cases
  • Application of Bowen
    • United States
    • U.S. Court of Customs and Patent Appeals (CCPA)
    • February 28, 1974
    ...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
    • United States
    • U.S. Court of Customs and Patent Appeals (CCPA)
    • March 2, 1948
    ...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 ......

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