Application of Winkhaus
| Decision Date | 18 December 1975 |
| Citation | 527 F.2d 637 |
| Parties | Application of Gunter WINKHAUS et al. Patent Appeal No. 75-611. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Striker, Striker, Kontler & Stenby, New York City, attys. of record, for appellant.
Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents; Robert D. Edmonds, Washington, D. C., of counsel.
Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
This appeal is from the decision of the Patent and Trademark Office Board of Appeals affirming the rejection under 35 U.S.C. § 102(a) of claims 25, 27, 31-33, and 35 in appellants' application, serial No. 57,080, filed July 22, 1970, for "Process and Apparatus for the Wet Preparation of Substances, such as Minerals and Ores," on a patent to Tusche and the rejection under 35 U.S.C. § 132 of claims 24 and 26 as being drawn to "new matter." We affirm.
All appealed claims are directed to a method of reacting ores and other solids with a wet reagent. Fig. 1 of the application is reproduced below:
In the method, the ore or other solid which is to be reacted is in the form of a liquid suspension of solid particles. At superatmospheric pressure, this suspension is passed in turbulent flow through a long tube, such as 1 in the figure, which has heating zones of successively higher temperature along its length. In the heating zones A, B, and C are the heat-exchange jackets, 3, 3, 4, and 6. During passage through the tube, reaction takes place between the solid particles and a reagent in the liquid. The reacted suspension is discharged from the end of the tube into at least one expansion vessel, such as 2, and cooled by heat exchange. Valuable substances are subsequently recovered from the liquid portion of the suspension. Claim 35. from which all other appealed claims depend, reads:
35. A method of reacting a solid substance and a liquid containing a substance that reacts with at least one of the components of the solid substance which comprises continuously passing a suspension in the said liquid of said solid substance in the form of particles at a superatmospheric pressure through an elongated tubular reactor comprising at least two successively arranged zones at such a flow rate as to maintain the suspension in turbulent flow during its passage through the entire elongated tubular reactor and to maintain the suspension in the said reactor for a residence period sufficient to complete the desired reaction, indirectly heating the successively arranged zones of the said tubular reactor to subject the suspension flowing therethrough to successively higher temperatures, continuously discharging the suspension from the said tubular reactor into at least one expansion vessel and thereby reducing the pressure of the suspension, cooling the suspension by heat exchange, and subsequently recovering the valuable substances in the liquid portion of the suspension.
Claim 24, from which claim 26 depends, reads:
24. The method of claim 35, which comprises passing the suspension at the end of each separate zone into an expansion zone and utilizing the hot vapors formed in said expansion zone for providing the heat for the preceding heating step.
None of the appealed claims is an original claim.
The § 102(a) rejection was based on Tusche U. S. patent No. 3,497,317, for "Method for Continuous Extraction of Bauxite in a Tubular Reactor," issued February 24, 1970. Before the board, appellants admitted that their process is the same as that of Tusche but argued that their present claims are directed to a "new use" for that old process, specifically its use in reactions other than the extraction of bauxite with sodium aluminate lye. (See 35 U.S.C. §§ 100(b) and 101.) To establish that their claims are so limited, appellants relied solely on the following statement in their specification:
The invention does not pertain to the extraction of bauxite with sodium aluminate liquor.
The board refused to so limit the claims, saying:
The process of extracting bauxite as taught by Tusche is encompassed by the instant claims. The limitation * * * above quoted from the specification which purports to exclude the process of extracting bauxite is not found in the claims. Limitations found in the specification but not in the claims are not read into the claims; see Graver Tank and Manufacturing Co. Inc. v. Linde Air Products Co., 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed....
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...such a step is possible is not sufficient indication to that person that the step is part of the applicant's invention." In re Winkhaus, 527 F.2d 637, 640 (C.C.P.A.1975) (emphasis in original). This does not mean, however, that a claimed invention cannot broaden the literal aspects of an ea......
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