Application of Hack
| Decision Date | 04 June 1957 |
| Docket Number | Patent Appeals No. 6278. |
| Citation | 114 USPQ 161,245 F.2d 246 |
| Parties | Matter of the Application of Walter L. HACK. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Townsend & Townsend, San Francisco, Cal. (Stephen S. Townsend, San Francisco, Cal. and J. Austin Stone, Washington, D. C., of counsel), for appellant.
Clarence W. Moore, Washington, D. C. (Arthur H. Behrens, Washington, D. C., of counsel), for the Commissioner of Patents.
Before JOHNSON, Chief Judge, and O'CONNELL, RICH, and JACKSON (retired), Judges.
This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the final rejection of claims 3 and 5 of patent application 208,449, filed January 29, 1951, for a brazing alloy.
The rejected claims, the only ones remaining in the case, read as follows:
The references relied upon are:
Peterson, 2,164,938, July 4, 1939
Nelson, 2,426,467, Aug. 26, 1947
German Patent 575,257 Apr. 26, 1933
The new alloy is characterized by its low surface tension characteristic and flowability which is superior to that of previous alloys consisting only of copper and gold. The addition of nickel also imparts a fine crystalline structure to the composition, thereby minimizing leakage when it is used as a soldering alloy in the production of vacuum tube equipment.
The patent to Nelson was relied upon to show that gold-copper alloys of the type claimed, but which do not contain any nickel, are old and have been used as solder in the assembly of vacuum tubes.
Peterson discloses a gold alloy having 33 to 84% gold, 11 to 67% copper, and 0.1 to 5% cobalt. The cobalt is said by the patentee to He also explains:
Peterson further refers to the fact that the "paling" or "decolorizing" effect of cobalt in the gold-copper alloy is less than that of nickel, "roughly only one fourth as great as nickel." As the board stated, Peterson apparently preferred to add cobalt rather than nickel to the gold-copper alloy because he wanted to preserve the yellow color of the gold.
The German patent to Firma G. Rau was relied upon to show an equivalence of cobalt and nickel in gold-copper alloys. The patentee disclosed that the nickel in his gold-copper-nickel alloy "can be totally or partially replaced by other metals similar to nickel, namely cobalt, iron or chromium, or else by metals of the platinum group * * *."
The claims were rejected by the Primary Examiner as unpatentable over Nelson in view of Peterson and the German patent. The board affirmed this rejection, and further held that the recitation of the intended use of the alloy (as a "brazing" alloy) was of no patentable import. From this holding, it can be concluded that the board did not consider the Nelson reference, which was cited only for the purpose of showing that alloys similar to that claimed were known in the brazing art, as vital.
The prior art cited clearly, in our view, discloses the claimed composition of gold, copper and nickel. Peterson, disclosing an alloy of gold, copper and cobalt, suggests that nickel can be substituted for cobalt if the practitioner is not concerned with the "paling" effect which would be the result of such a substitution. The German patent explicitly discloses and claims an alloy in which the ingredients are gold, copper and nickel. Nowhere in the course of the prosecution of this case has applicant contended that the percentage proportion of each metal used in his alloy is critical. Such selection would seem but a matter of choice. The precise percentages claimed, moreover, fall within the range disclosed by Peterson. These references alone, without reliance on the patent to Nelson, show that the claimed composition of matter is neither new nor unsuggested by the art.
Appellant, however, contends that one cannot justifiably rely upon the Peterson reference and the German patent, which relate to jewelry and spectacle...
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