Application of Le Baron

• Decision Date: 15 June 1955
• Docket Number: Patent Appeal No. 6082.
• Citation: 223 F.2d 471,42 CCPA 956
• Parties: Application of LE BARON.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

42 CCPA 956, 223 F.2d 471 (1955)

Application of LE BARON.

Patent Appeal No. 6082.

United States Court of Customs and Patent Appeals.

June 15, 1955.

Ernest V. Haines, Skokie, Ill., and Edward S. Irons, Washington, D. C. (James P. Burns, Washington, D. C., of counsel), for appellant.

E. L. Reynolds, Washington, D. C. (Clarence W. Moore, Washington, D. C., of counsel), for the Commissioner of Patents.

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

GARRETT, Chief Judge.

This is an appeal from a decision of the Board of Appeals of the United States Patent Office, rejecting certain claims of appellant's application, serial No. 117,060, filed September 21, 1949, for "Phosphorus Compound and Process of Producing Same." The Board of Appeals had before it claims Nos. 25-35, inclusive, which claims for reasons of form had been substituted for the claims rejected by the Primary Examiner. No claims have been allowed.

Claims 25-30, inclusive, are process claims, and claims 31-35, inclusive, product claims. The Board of Appeals affirmed the rejection by the examiner of the product claims (Nos. 31-35). No appeal has been taken to this court from that rejection. With regard to the process claims (Nos. 25-30), the board refused to sustain the rejection upon one of the grounds upon which the examiner based his decision, but the board affirmed the rejection upon the other grounds. Appellant appeals from this latter decision only.

Claim 25 is illustrative, and reads as follows:

"25. A process of preparing phosphates which comprises introducing, for quick fusion, an at least partially defluorinated superphosphate, prepared by calcination at a temperature below its fusion temperature, into a mass of said material being maintained in the molten state at temperatures below volatilizing temperatures for phosphorus constituents, removing at least a portion of said molten mass when homogeneous and quenching the removed portion within at least ten seconds after its removal from the molten bath."

The references which were cited by the Board of Appeals are the following:

                  Tromel         2,093,176   Sept. 14, 1937
                  Franck et al.  2,183,379   Dec.  12, 1939
                  Butt           2,442,969   June   8, 1948
                  Maust          2,446,978   Aug.  10, 1948
                  Schilling      2,539,638   Jan.  30, 1951
                

Curtis et al. — Industrial and Engineering Chemistry, Vol. 29, No. 7, July 1937 pp. 766-770, "Fertilizer from Rock Phosphate."

The principal reference so far as we are here concerned is the patent to Tromel, the rejection of the appealed claims having been based by the board upon Tromel alone, or upon Tromel in view of Schilling. The patent to Maust and the article by Curtis et al. were used as auxiliary references. The patents to Butt and Franck et al. were not relied upon by the board in the rejection of the claims here involved, but the Solicitor for the Patent Office suggests that they may be useful in arriving at an understanding of the general subject matter to which the claims are directed. In view of the limited issues which have been presented to this court, an exhaustive discussion of the references is not deemed necessary.

Appellant's application is directed to a method of producing from "phosphate rock"¹ a phosphorus compound (primarily tricalcium phosphate) suitable for use as an animal feed supplement. Some of the references have the same object, while the others are primarily concerned with the production of phosphates to use as fertilizer. Although appellant points out these different objects, it does not seem that there is any difference in the processes directed to these two objects which would have any bearing on the patentability of the present process, and appellant does not seem to so claim.

Apparently, in so far as we can determine from the record, phosphate rock in its natural state is not satisfactory for use either as a feed or as a fertilizer, and it is usually further treated before use. Some of the procedures involve treatment with various types of acid, and "calcination" or roasting. In appellant's specification we are told that it is necessary to reduce the amount of flourine which is in the natural rock to extremely low percentages in order to use the rock to best advantage. Apparently large amounts of the flourine are removed by the acid treatment and calcining steps, but enough remains to cause serious difficulties in animal feeding. We are also told in the specification that it is desirable to obtain as high a percentage of the alpha crystalline form of tricalcium phosphate as possible, because the alpha crystalline form has its phosphate, P2O5, in a more "available" state than the natural rock, i. e., it can be more readily absorbed by the animals.

The process described in the application involves melting the phosphate rock either before or after previous acid treatment or calcining steps, and then "quenching" the molten rock immediately. This process is said to reduce the amount of flourine to negligible amounts, and to maximize the alpha form of tricalcium phosphate.

It is apparent from the specification that appellant thought he was the first to develop the quenching step, and it was strongly emphasized in the application and its prosecution below for its efficacy in obtaining the alpha crystalline form. The Board of Appeals refused to treat this step of appellant's process as being inventive, stating, "Quick quenching of Tromel's product seems to us to be wholly uninventive since this is a known expedient in the art to preserve the tricalcium phosphate in the alpha form. Schilling discloses the expedient and it is further illustrated by Maust, * * * and the Curtis et al. article, * * *." The ground of rejection of the examiner which was overruled by the board related to a particular combination of references thought to show the unpatentability of this quenching step. Although appellant's reasons of appeal are general in form, alleging that the "Board of Appeals erred in affirming the Primary Examiner's rejection upon references," the brief in behalf of appellant before this court does not controvert nor discuss at any length the board's holding with respect to the unpatentability of the quenching step recited in the claims. It follows that appellant must be deemed to have abandoned any claim of patentability for this quenching step. In re Cremer, 173 F.2d 376, 36 C.C.P.A., Patents, 980, 990. In re Dalton, 188 F.2d 170, 38 C.C.P.A., Patents, 953, 955.

Thus, the only question before this court is whether there is invention in "introducing, for quick fusion, an at least partially deflourinated superphosphate, * * * into a mass of said material being maintained in the molten state * * *." Appellant argues that this is "the critical and distinguishing step of the claims here on appeal." In his brief appellant states,

"The above defined critical step effects substantially instantaneous fusion of the phosphate rock whereby the flourine is almost completely removed therefrom. Gradual heating of the phosphate rock to the fusion temperature, as in the prior art does not achieve the same result as that obtained by appellant. Gradual heating of the phosphate rock to the fusion temperature yields, even after a prolonged period of maintenance of the rock in the molten state, a product which contains on the order of ten times as much

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