Application of Ockert

• Decision Date: 25 June 1957
• Docket Number: Patent Appeals No. 6257-6261.
• Citation: 245 F.2d 467,114 USPQ 330
• Parties: Application of Carl E. OCKERT (five cases).
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

114 USPQ 330, 245 F.2d 467 (1957)

Application of Carl E. OCKERT (five cases).

Patent Appeals Nos. 6257-6261.

United States Court of Customs and Patent Appeals.

June 25, 1957.

Dos T. Hatfield, Washington, D. C. (Frank S. Busser, Philadelphia, Pa., and Theodore E. Simonton, Cazenovia, N. Y., of counsel), for appellant.

Clarence W. Moore, Washington, D. C. (J. Schimmel, Washington, D. C., of counsel), for Commissioner of Patents.

Before JOHNSON, Chief Judge, and O'CONNELL, RICH, and JACKSON, retired, Associate Judges.

RICH, Judge.

These are five appeals from decisions of the Patent Office Board of Appeals affirming rejections by the Primary Examiner of all the claims of each of appellant's applications, Nos. 111,111 to 111,115, inclusive, all filed on August 19, 1949, each rejection being based on the ground of double patenting in view of appellant's patent No. 2,614,133, granted October 14, 1952, on an application filed July 30, 1949. The patent to Olsen, No. 2,585,490, granted February 12, 1952, was also relied on in support of the rejections. While separate records and briefs were filed in each appeal, the issues are so closely related that we shall dispose of all the appeals in a single decision.

The Ockert patent, which forms the primary basis for the rejection in each case, relates to a continuous process for separating organic compounds, especially liquid hydrocarbons, of different adsorbabilities by the use of a finely divided selective adsorbent, such as silica gel or activated carbon. The process involves passing the organic compound in liquid phase and the finely divided adsorbent through a vertical column in opposite directions. In the embodiment shown, the adsorbent passes downwardly from the top of a column defining an adsorption zone, while the organic compound is directed upwardly into the column at an intermediate point. The saturated components of the compound, which are not readily adsorbed, pass out through the top of the column with a comparatively small portion of the desorbing agent while the adsorbent and the unsaturated components which have been adsorbed by it fall to the bottom of the column, whence they are carried by a fluid transporting medium to the top of a second vertical column which defines a desorption zone. The adsorbent and the adsorbed components fall through this desorption zone, where they encounter a liquid desorbing agent which moves upwardly through the zone, from a point near the bottom thereof, and removes the adsorbed components from the adsorbent. The said components pass out at the top of the desorption zone together with the desorbing agent.

The adsorbent material which reaches the bottom of the second column or desorption zone is carried back by a fluid transporting medium to the top of the adsorption zone for a repetition of the cycle.

The saturate organic compounds drawn from the top of the adsorption zone and the unsaturate organic compounds drawn from the top of the desorption zone are separated in distillation zones from the desorbing agent with which they are associated.

The transporting medium which carries the adsorbent and the unsaturate components from the adsorption zone to the desorption zone comprises material drawn from the top of the desorption zone, while the medium which transports the materials from the bottom of the desorption zone to the top of the adsorption zone is obtained from the top of the adsorption zone. Part of the unsaturate products removed from the distillation zone are returned to the adsorption zone which they enter at a point above the bottom but below the point at which the charge of organic compounds is introduced, while the desorbing agent which is separated from the unsaturate components in the distillation chamber is returned to the desorption zone.

The Olsen patent was relied on by the Patent Office tribunals as showing a continuous adsorption process generally similar to that of the Ockert patent, but with the adsorption and desorption taking place in separate portions of a single vertical column. In the embodiment illustrated by Olsen the adsorption zone is located in the lower part of the column and the desorption zone in the upper, but it is stated in the patent specification that that arrangement may be reversed if desired.

The five applications involved in the present appeals disclose processes which are basically similar to that of the Ockert patent, and it is admitted by appellant that "the several applications and the patent have a common novel generic concept." Accordingly, it will not be necessary to discuss in detail the disclosure of each of the applications. It will be sufficient to consider only those differences between the several applications and the patent which are set forth in the appealed claims. This will be done hereinafter in connection with the individual treatment of the several appeals. Our consideration of these matters has been facilitated by a most helpful table of differences included in a supplemental brief filed by appellant and clearly showing the distinctions on which he relies.

A large number of claims is presented by these appeals and many of them are long and somewhat involved, as will appear below, but the differences between the claims of the patent and those of the applications are comparatively simple. Under these circumstances we need not encumber this opinion with any of the claims. Detailed consideration may be confined to the points of difference.

Before proceeding to a discussion of the individual appeals we shall dispose of certain general questions which are applicable to all of them.

Appellant argues that if he had inserted in a single application the disclosures and claims of his patent and of his applications here involved, division would have been required by the Patent Office and that, under such circumstances, a rejection on the ground of double patenting is improper. The same contention was recently made and decided adversely to the applicant in In re Russell, 239 F.2d 387, 44 C.C.P.A., Patents, 716, for reasons which are equally applicable here.

Appellant further urges that although there is a novel generic concept common to his applications and patent, it has not been possible to draw a patentable generic claim covering that concept, and that the appealed claims and those of the patent are mutually exclusive.

We are sympathetic with appellant, as was the board, in view of the situation in which he finds himself, but the statutory requirements as to the granting of patents cannot be waived because of the exigencies of particular cases. 35 U.S.C. § 101, like its predecessor R.S. 4886, provides that an inventor may obtain a patent for his invention. There is no statutory provision for the granting of a plurality of patents on a single invention, and this court has repeatedly held that if two patents are to be granted there must be two inventions. In re Jennings, 167 F.2d 1014, 35 C.C.P.A., Patents, 1163; In re Ward, 236 F.2d 428, 43 C.C.P.A., Patents, 1007, and cases there cited. It is also well settled that, in determining whether the claims of an application are patentably distinct from those of a patent it is proper to consider...