Anderson v. Pieper, Patent Appeal No. 8476.

• Decision Date: 15 July 1971
• Docket Number: Patent Appeal No. 8476.
• Citation: 442 F.2d 982
• Parties: Arthur William ANDERSON and William Lawrence Truett, Appellants, v. Gustav PIEPER, Hans Rickert and Eberhard Stein, Appellees.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

442 F.2d 982 (1971)

Arthur William ANDERSON and William Lawrence Truett, Appellants, v.Gustav PIEPER, Hans Rickert and Eberhard Stein, Appellees.

Patent Appeal No. 8476.

United States Court of Customs and Patent Appeals.

May 27, 1971.

Rehearing Denied July 15, 1971.

Herbert W. Larson, Wilmington, Del., attorney of record, for appellants; A. Newton Huff, Wilmington, Del., James T. Corle, Arlington, Va., of counsel.

Burgess, Dinklage & Sprung, New York City, for appellees; Arnold Sprung, New York City, of counsel.

Before RICH, ALMOND, BALDWIN, and LANE, Judges, and SKELTON, Judge, United States Court of Claims, sitting by designation.

LANE, Judge.

This appeal is from the decision of the Board of Patent Interferences awarding priority to appellees(hereafter Pieper) on the following count:

1.A process for the production of a solid polyethylene which comprises (1) reducing titanium tetrachloride with aluminum and (2) contacting ethylene with a catalyst consisting of the product of step (1).

Appellants(hereafter Anderson) were in a position junior to Pieper, Anderson's application serial No. 584,887, filed May 15, 1956, being entitled to the benefit of earlier applications serial Nos. 450,243 and 450,244, both filed August 16, 1954.Pieper was accorded a convention priority date of June 9, 1954.A third party, Karl Ziegler and Heinz Breil, was in the interference but has not appealed, and that party's presence in the interference is of no significance in resolving the issues before us.

Anderson took testimony, while Pieper stood on his priority date.The board, in awarding priority to Pieper, held against Anderson on both of his major contentions, namely, (1) That Pieper was not entitled to make the count because he had disclaimed the subject matter thereof; and (2) that, even if Pieper could make the count, Anderson had established actual reduction to practice before Pieper's priority date.We find that Anderson did establish actual reduction to practice before Pieper's priority date.Hence, we need not reach the question of disclaimer by Pieper.

As stated above, Pieper's priority date was June 9, 1954.Anderson contends that his evidence establishes actual reduction to practice on March 19, 1954.

The count, as set forth above, defines a method of producing solid polyethylene.Two steps are involved.First, titanium tetrachloride, a compound in which titanium exhibits a valence of four, is reduced to the dichloride, in which it exhibits a valence of two, by mixing with aluminum.Second, the dichloride is put in contact with ethylene.Polymerization of the ethylene then occurs, and it is said that this result is achieved over a wide range of temperatures and pressures.Anderson's specification, for example, states that temperatures from 25°C to 250°C or higher may be employed, and that good results are obtained at pressures from one to 200 atmospheres.It is not completely clear that solid polymer is obtained throughout these temperature and pressure ranges, although the Pieper specification indicates that this is so by noting that temperatures up to 400°C and pressures up to 200 atmospheres can be used and that "the softening point of the product obtained varies according to manufacturing conditions between 100°C and approprixately 150°C."The Pieper specification also states generally that "predominantly solid polymers of ethylene are formed when using the titanium catalysts hereinbefore described."

Turning now to Anderson's proof, Truett, who is Anderson's co-inventor, testified that he carried out certain experiments on March 2, and March 5, 1954.In each of these experiments a mixture of titanium tetrachloride and aluminum was prepared by Truett in his laboratory and the mixture was then taken to the High Pressure Laboratory at DuPont, assignee of the Anderson application.The mixture was there charged into a stainless steel tube, or "bomb," where it was heated to cause a reaction between the titanium tetrachloride and the aluminum.The bomb was then pressured with ethylene and heated.Truett identified notebook entries describing the portions of these experiments which were carried out in the High Pressure Laboratory.The entries were made by Stephens, Banks and Earley, all of whom testified in the case.The entries contain statements such as "Recovered product from open tube," but neither the entries nor the testimony of the entrants indicated that the product obtained in the experiments was necessarily solid.

Truett himself testified that the products were solid, and he identified his own notebook entries on the experiments.These were received in evidence and contain the notations "The reaction vessel was solid with polymer" and "The reaction product was soid + oil."

The record makes it clear that the products obtained in these experiments were turned over to a Dr. Merckling.Dr. Merckling was deceased at the time of the proceedings in this case.However, his notebook entries purporting to describe his testing of the products in question were received in evidence without objection, a thorough foundation of authenticity and admissibility having been laid through witnesses familiar with his handwriting and with practices at the laboratory relative to notebook entries.The entries bear dates between February 24 and March 19, 1954, and purport to have been witnessed on various dates between February 26 and March 23, 1954.The witnesses to the entries did not personally observe the tests recorded in those entries.The entries themselves, considered in conjunction with testimony interpreting them, are the only independent...