Application of Arbeit

• Decision Date: 28 September 1953
• Docket Number: Patent Appeal No. 5937.
• Citation: 99 USPQ 123,206 F.2d 947
• Parties: Application of ARBEIT et al.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

99 USPQ 123, 206 F.2d 947 (1953)

Application of ARBEIT et al.

Patent Appeal No. 5937.

United States Court of Customs and Patent Appeals.

June 24, 1953.

Rehearing Denied September 28, 1953.

John L. Seymour, New York City (Dale A. Bauer, New York City, of counsel), for appellants.

E. L. Reynolds, Washington, D. C. (S. W. Cochran, Washington, D. C., of counsel), for Commissioner of Patents.

Before GARRETT, Chief Judge, and O'CONNELL, JOHNSON, WORLEY and COLE, Judges.

GARRETT, Chief Judge.

This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming that of the Primary Examiner finally rejecting several claims of an application, serial No. 69,667, filed January 7, 1949, for "Glass Tank Furnaces." One claim numbered 42 was allowed by the Primary Examiner.

Two claims numbered, respectively, 11 and 12, are listed among the appealed claims, but no reference to them is made in either the reasons of appeal or the brief for appellants before us. The board said concerning them:

"Claims 11 and 12 have been rejected by the Primary Examiner as not inclusive of the elected species of subject matter and since that rejection has not been challenged we need not further consider these claims."

Obviously, those claims were improperly included in the list and the appeal as to them will be formally dismissed.

So, the claims actually on appeal are numbered 1, 31, 33, 37, 38, 39, 43, 44, 45 and 46. Claim 38 is dependent upon claim 37, and claims 44, 45 and 46 are dependent upon claim 43. Claim 33 is a method claim; all the others are for apparatus.

We here quote claim Nos. 1, 33, 37 and 43:

"1. In a furnace for the continuous manufacture of vitreous substances, such as glass, in which the material is submitted in successive compartments to the operations of melting, fining and conditioning to the required temperature for its working, electrodes in the fining compartment to cause an electric current to pass through the glass bath, and at least one conduct situated beneath the surface of the glass bath in one compartment to cause the glass to pass from said compartment to the following one, the cross section of said conduct being sufficiently small to ensure to the glass stream, flowing through said conduct as a result of the extraction of glass from the furnace, a speed sufficiently high to prevent any back current through said conduct.

"33. The method of manufacturing glass that includes the steps of melting, fining and working the glass, the glass proceeding from a melting zone to a fining zone to a working zone and being withdrawn from the working zone, fining the glass by Joule effect, and flowing the glass from zone to zone in small, submerged streams impermeable to wandering currents in the zones, said streams constituting the sole connections between the zones.

"37. A glass furnace having a fining zone completely surrounded by walls and separated thereby from all other parts of the furnace, heating means beneath the glass level of the fining zone, the sole connection between said zone and an adjacent part of the furnace consisting of at least one little tube penetrating a wall of the fining zone and extending into said part, said tube being proportioned to the rate of withdrawal of glass from the furnace and providing a minimum flow capable of preventing return flow.

"43. A glass furnace of continuous type having separate glass-containing compartments on one level for glass in different stages of manufacture and discharge means for withdrawing finished glass, and conduit means of small section between said separate compartments, said conduit means having a flow rate related to the flow rate of the discharge means so that the normal operation of the discharge means produces in the conduit means a glass velocity having a minimum in the range from several mm to 1 cm per second."

The following patents were cited as references: Rogers 469,454 Feb. 23, 1892; Voelker 706,283 Aug. 5, 1902; Grauel 1,552,555 Sept. 8, 1925; Arbeit 1,593,054 July 20, 1926.

Appellants' specification and figure 2 of the drawings, which figure, the board states "illustrates the species of alleged invention that has been elected," disclose a furnace having three separate compartments (also referred to as tanks and zones) that are connected by tubes referred to in some of the claims as "conducts"¹ and in others as "conduits." In figure 2, the tubes are longitudinally arranged and are described as "having a small cross section, preferably cylindrical, inserted into the depth of the walls of the two compartments to be connected."

The manufacturing process evidently requires high degrees of heat in the tanks and the specification teaches "heating by the Joule² effect with submerged electrodes, such heating being used alone or else combined with surface heating."

It is explained in the specification that the vitrifiable materials used in the composition of glass are melted in the first tank, or zone, being there reacted "on one another;" that the second tank, or zone, is "for evolving the bubbles so as to refine the glass;" and that the third tank, or zone, is provided "for conditioning the molten glass by cooling it down to the temperature suitable for working it by rolling, gathering, feeder extraction, and so on."

Neither the specification nor the claims specify any degree of heat, but the brief for appellants recites temperatures of "about 1100° to 1200° C." in the third.

Such additional details of structure as are deemed pertinent upon the narrow issue here involved are stated hereinafter.

The following informative statement is quoted from the brief for appellants:

"If one were to measure all the glass furnaces operating in the world, one would probably find that no two such furnaces have the same dimensions. They are not turned out like automobiles with interchangeable parts, but each glass furnace is specially designed to embody the capacity to meet new requirements, the demands of new machines, and to embody lessons learned from old furnaces. An examination of the drawings of over 60 furnaces belonging to a very large company showed no duplicates either in constructional features or in rate of production. The little furnace for making relatively small quantities of optical glass is totally unrelated in size, rate of production, outline, and rate of flow of glass in the furnace to the gigantic plate glass machine whose apparatus is over a half a mile long."

In the specification it is said:

"The object of the present invention consists in providing particular means for ensuring the communication from one compartment of the tank to another compartment. More especially, it relates to means permitting to prevent any movement of the already fined glass containing sic in the fining cell or compartment back to the melting compartment, or of the already cooled glass contained in the conditioning compartment back to the fining cell or compartment.

* * * * * *

"In a tank furnace for the continuous production of glass comprising one or more fining cells or compartments electrically heated by the Joule effect, there is provided, according to the present invention, for the passage of molten glass from one compartment to the following compartment, one or several conducts each having a cross section sufficiently small to ensure to the glass stream, flowing through it as a result of the extraction of glass from the furnace, a speed sufficiently high to prevent any back current; the conducts through which the glass flows from one compartment to the following one are situated between the level of the glass bath in the former compartment."

While, as has been indicated, many claims are embraced in the appeal, the issue as presented before us actually is limited to the question of whether the subject matter relating to preventing the currents of molten glass from "flowing the wrong way in the furnace" is patentable as that feature is expressed in the appealed claims.

The following statement is taken from the decision of the board:

"* * * Appellants had encountered the difficulty in use of compartmented furnaces that they did not prevent currents of cold glass from the working zone returning to the fining zone and currents of hot glass returning to the melting zone from the fining zone. To overcome the difficulty it is proposed to pass the glass from zone to zone through tubes at a velocity sufficiently high that return flow is prevented. Fig. 2, which illustrates the species of alleged invention that has been elected, shows the melting, fining and working compartments of a furnace connected by small conduits. * * *."

From the foregoing, it is apparent that the velocity of the currents of molten glass flowing through the connecting conduits constitutes the element relied upon to prevent the backward flow of such molten glass.

In the brief on behalf of appellants and in the oral argument before us, practically all the emphasis was placed upon claim 43 and the dependent claims 44 and 45, and from our study of the case, we think it logical to give claim 43 first consideration. Unless the velocity feature, as expressed in the claim, is patentable, it is not discerned how such feature properly can be held patentable as it is expressed in any other of the appealed claims.

Before discussing the merits of claim 43, however, there is a question which requires preliminary attention.

As has been stated, one claim stands allowed. It seems to have been "indicated as allowable" by the Primary Examiner. It is presently numbered 42. In stating the reasons for appeal to us, it is alleged that the Board of Appeals erred "In failing to allow claims 43 to 45 in view of the allowance of claim 42," and in both the brief and oral argument before us, argument was made in support of that alleged error.

In the case of In re Waite, 168 F.2d 104, 110, 35 C.C.P.A., Patents, 1117, 1126, we said:

"We apprehend that there is no rule of

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