Application of Hassler

• Decision Date: 01 July 1965
• Docket Number: Patent Appeal No. 7318.
• Citation: 347 F.2d 911
• Parties: Application of Francis J. HASSLER.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

347 F.2d 911 (1965)

Application of Francis J. HASSLER.

Patent Appeal No. 7318.

United States Court of Customs and Patent Appeals.

July 1, 1965.

Raymond F. Lippitt, Washington, D. C., (William K. West, Jr., Memphis, Tenn., of counsel), for appellant.

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

Before RICH, Acting Chief Judge, and MARTIN, SMITH, and ALMOND, Judges.

MARTIN, Judge.

The issues we must determine in this appeal are whether a newspaper article reporting progress of experiments by appellant and his coworkers is available as a reference, and if so, whether it, coupled with knowledge of the art either as generally known or as shown by certain patents, is sufficient to make the presently claimed invention obvious to one of ordinary skill in the art.

A newspaper article titled "Bulk Leaf Curing Method Ready for Farm Testing," appeared in "The News and Observer," Raleigh, North Carolina, on November 10, 1958. The article reports the results of a method of bulk curing tobacco regarded as "so promising that private manufacturers have now been encouraged to consider the development of commercial equipment and to aid in farm-scale testing." The method is stated to have been developed by agricultural engineers with the "N. C. Agricultural Experiment Station and USDA," and was "tested at the Oxford Research Station this summer" under a "cooperative tobacco curing program" headed by appellant, Dr. Francis J. Hassler.

Nineteen months later, on June 13, 1960, appellant Francis J. Hassler filed an application serial No. 35,499 for "Method and Apparatus for Bulk Curing Tobacco." A subsequent requirement for division by the Patent Office led to the instant application, serial No. 164,789, filed January 8, 1962, titled the same as the parent, but the claims of which are restricted to the apparatus alone. As will be seen in greater detail below, the newspaper article disclosure corresponds in great part to the apparatus now claimed.

Appellant, in his main and reply brief, has taken two approaches to the article disclosure. First, it is urged that the article "merely identifies a bulk curing process which is being tested." Appellant notes that the Patent Office admits the article does not disclose all the claimed structure, nor does it disclose the nature of the curing process. It is argued that the article is merely "a disclosure of Dr. Hassler's early experimental work" which is now being used to preclude the patenting of "the ultimate commercial reality of those experiments." Appellant reasons that:

Since the News and Observer article was published at a time when the invention was in the experimental stage, appellant is entitled to the `hospitality\' accorded by law and the disclosure of the article should not be construed strictly against him.

In view of the fact that the article does not disclose all the claimed structure, appellant states that The News and Observer article "clearly does not consistitute a statutory bar."

Appellant takes a second position, in major part relying on In re Palmquist, 319 F.2d 547, 51 CCPA 839, to the effect that the "board's rejection of the present claims is clearly based upon 35 USC 103," but "since the News and Observer article clearly is not prior to applicant's first date of invention, it is not a proper reference to be utilized in determining obviousness under 103."

The solicitor's brief points out that there is no evidence of record showing that the claimed invention had been completed prior to the publication of The News and Observer article, thus the reliance on Palmquist was not well founded. The solicitor also points out that the two lines of argument are inconsistent, the appellant arguing on the one hand that the invention had not been completed prior to the article which therefore cannot be a barring anticipatory disclosure, and, on the other hand, that the invention had been completed prior to the publication, and in view of Palmquist the article was not an available reference for a section 103 rejection. Appellant's reply brief is devoted almost entirely to the argument based on Palmquist, urging that since The News and Observer article is a report of appellant's own invention it is both absurd and unnecessary to require him to swear behind it, citing M.P.E.P. 715.01(c).

We think the contradiction between the two lines of appellant's argument is more apparent than real. As we see it, appellant is arguing that The News and Observer article is not a complete disclosure, and so much of the invention as was disclosed therein was made prior to the publication thereof. Nevertheless, the line of argument concerning the unavailability of The News and Observer article has been rendered moot by our recent decision in In re Foster, 343 F.2d 980, 52 CCPA ___, in which that aspect of In re Palmquist relied on by appellant for support was explicitly overruled.

We agree with the board's holding that The News and Observer article is a valid reference under 35 U.S.C. § 102(b) for what is disclosed therein, since it was available to the public for more than a year prior to applicant's filing date. In re Ruscetta, 255 F.2d 687, 45 CCPA 968; In re Foster, supra. The publication is not removed as a reference merely because it discloses appellant's own invention, or an early stage of that invention, and the publication, having been available to the public for more than a year, may not be overcome by a showing of invention prior to the publication date. The question then is to determine what is disclosed therein and whether that disclosure, taken with prior art, renders the claimed invention obvious to one of ordinary skill in the art.

The News and Observer article consists of text, three photographs, and a diagram, the last being reproduced here:

The pertinent part of the article text states:

BULK LEAF CURING METHOD READY FOR FARM TESTING

By Tom Byrd.

* * * * * *

More Uniform Leaf

"It the method also has the potential for producing a more uniform leaf," Dr. Hassler said, "which will make grading easier."

A special barn is required to bulk-cure tobacco. However, the leaf is prepared for market the same way as conventionally-cured tobacco.

* * * * * *

In this new bulk-curing process tobacco is placed in frames by the armful, rather than tied on sticks three or four leaves at a time.

Two men can frame the tobacco and place it in the barn as rapidly as at least four men can prime it from the field. Under present barning methods, about 10 barn hands are needed to keep up with four primers.

Laboratory tests show there are no significant chemical differences in the bulk-cured and conventionally-cured tobacco. Representative samples of tobacco bulk-cured at the Oxford station last summer averaged $62 per hundred on the open market.

* * * * * *

New Approach

* * * * * *

"Throughout our work," Dr. Hassler continued, "we have recognized that the present curing method is a major factor in characterizing our flue-cured tobacco. Therefore, in the research and development of this new process we have been very careful to compare those qualities that characterize our flue-cured tobacco."

The first photograph shows a worker placing tobacco leaves in a trough-like loading bin. A horizontal bar having numerous long spikes extending downward therefrom is disposed above the tobacco in the loading bin. The caption states:

BILL JOHNSON places tobacco into frames for curing. Spikes at top of frame are pushed through tobacco to hold it in place.

The second photograph shows two workers lifting the special "frame" which holds the tobacco, and is captioned:

WILEY HENSON (left) and Rupert Watkins move a frame of tobacco from loading racks to curing barn. Frame holds 10-12 sticks.

The third photograph shows the interior of the curing chamber. Two tiers of the special frames which hold the tobacco are shown therein, one end of each frame being supported by posts in the center of the barn, while the other end of each frame is apparently supported on the walls visible at the edges of the photo. The caption states:

INTERIOR OF BARN used for bulk curing is shown here. Hot air moves up through the floor and through the frames of tobacco. Two-thirds as much tobacco could be cured in this chamber as in a 16 × 16 foot barn.

The disclosure of the appealed application will be readily apparent from certain of the drawings:

Fig. 5 shows a longitudinal section view of a curing barn, and Fig. 3 shows a cross-sectional view through the drying chamber portion. Referring to Fig. 5, furnace 30 heats air which is moved from the furnace room (delineated by the area between right end wall 18 and partition 16) by a blower 32 through duct 36c into the drying chamber (delineated by the area between left end wall 14 and partition 16). Hot air leaving ports 38 passes through the tobacco 26 (Fig. 3) racked in special frames 24. Dimensions of the frames, barn partitioning (i. e. consider Fig. 3, partitions 20a, 20b, and Fig. 5, walls 14, 16), and close leaf packing are "* * * such as to force the circulated air to flow between the bulked tobacco leaves." The air then exits via upper duct 40. Element 44 is a damper and outlet duct 46 communicates to the outside atmosphere. By adjustment of the damper, varying amounts of fresh air may be admitted to the heating system, and, if desired, "* * * duct 46 may be closed, such that the air within the system is recirculated without addition of fresh air." A particular cycle of temperature and humidity throughout a 3-stage drying process is disclosed.

The apparatus used in the process of loading the frames or racks with tobacco leaves to be dried is illustrated in Figs. 6 and 7. The loading bin has an open top and open side. Tobacco leaves are placed butt end first into the bin and a frame or rack side-member 54 is pressed downwardly to force the spikes 56 through the tobacco leaves. A second side-member ...