Application of Ziegler
| Decision Date | 24 June 1965 |
| Docket Number | Patent Appeal No. 7428. |
| Parties | Application of Karl ZIEGLER, Heinz Breil, Erhard Holzkamp and Heinz Martin. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Arnold Sprung, New York City, for appellants.
Clarence W. Moore, Washington, D. C. (J. E. Armore, Washington, D. C., of counsel), for the Commissioner of Patents.
Before WORLEY, Chief Judge, and RICH, MARTIN, SMITH, and ALMOND, Judges.
The major issue in this appeal resolves itself into the question of whether a foreign application must show an entire generic invention as presently claimed in a U. S. application in order to be effective for priority, or whether it may be effective for priority purposes if it shows the same species as the references which otherwise anticipate the claims. A preliminary issue is whether the term "alkali metal alkyl" is anticipated by a lithium aluminum tetraalkyl.
The application on appeal1 discloses and claims a two-component catalyst useful for the polymerization of olefins, ethylene being shown in all the examples. The polymers produced by use of the catalyst may have molecular weights of 300,000 up to 3,000,000, in contrast to the highest obtained by "prior known methods" of about 50,000. Appellants' polyethylenes are almost completely linear in molecular structure and have a "high crystal content," generally amounting to "80% and in many cases even higher." Reflecting those differences are the properties of increased temperature stability and tear strength.
Generic claim 1 reads as follows except that the breakdown and numbering are ours:2
1. A polymerization catalyst composed of a mixture of a first first and second component I said first component being substantially composed of a member of the group consisting of A alkali metal 1 alkyls and 2 aralkyls B 1 complexes of alkali metal alkyls and 2 complexes of alkali metal hydrides with a metal organo-compound of the group of metals consisting of magnesium and zinc,3 and C complexes constituted of two metal organo-compounds of the group of metals consisting of aluminum, magnesium and zinc,4 II said second component being a a heavy metal compound selected from the group consisting of A the salts and B the freshly precipitated 1 oxides and 2 hydroxides of metals of Groups IV-B, V-B and VI-B of the Periodic System including thorium and uranium each of said components being present in an amount with respect to the other, to cooperatively act therewith forming an active olefin polymerization catalyst.
The remaining claims directly or indirectly depend from claim 1, all but one of which contain more specific limitations on the second component. Claim 2 specifies the second component to be a chloride, claim 3 that the chloride of claim 2 is a titanium chloride, and claim 4 that the chloride of claim 2 is a titanium tetrachloride; claim 8 specifies the heavy metal of the second component to be chromium; claim 10 specifies the second component heavy metal to be zirconium, and claim 11, dependent therefrom, calls for zirconium tetrachloride. Claim 19 limits the first component of claim 1 to be the component we have labeled I A 1 above in our subparagraph form claim breakdown, the alkali metal alkyl. Allowed claims 9, 12, 13, 17 and 22 specify the second component as various acetonates, and allowed claim 20 limits the first component to be that which we have labeled I C above.
The references relied on for the rejections are:
Brebner et al. 2,822,357 Feb. 4, 1958
(Filed Jan. 28, 1955)
Brebner 2,839,518 June 17, 1958
(Filed Mar. 22, 1955)
Shearer et al. 2,887,471 May 19, 1959
(Filed Nov. 29, 1955)
Gresham et al. 2,900,372 Aug. 18, 1959
(Filed Aug. 30, 1954)
Bruce 2,909,512 Oct. 20, 1959
(Filed Mar. 25, 1955)
The grounds of rejection within the context of this case appear to be based on both 35 U.S.C. §§ 102 and 103.5 It is acknowledged by both the Patent Office and appellants that all the references show a component falling within the claimed definition of the second component; the issue centers around what the references show about the first component. Certain explicit admissions as will appear below simplify that issue. All discussion in the briefs centers around the species of first component labeled by us above as I A 1, alkali metal alkyls. The Patent Office has not directed our attention to anything in the references which would indicate that they show more than that species of first component in combination with a claimed second component. Our views below are predicated on the assumption that the references show only that species, or fall within the range of obviousness of that species. Necessarily, the result would not be the same should the references overlap by more than that single species, as will be evident below.
The appealed application is stated to be a continuation-in-part of two applications, serial Nos. 554,609 and 554,631, both filed December 22, 1955.6 No issue is raised concerning the adequacy of the disclosures therein to support the claims on appeal. Both of the above mentioned parent applications were filed in the U. S. subsequent to the effective filing date of the references relied on for the rejection. However, all but one of the references, Gresham et al. (Gresham), would be antedated by granting the benefit of the filing date of two German applications, Z 4628 and Z 4629, both filed December 27, 1954.7 The board made no clear statement that appellants were not otherwise entitled to the date of December 27, 1954, but was of the view that those foreign applications could not overcome the references (other than Gresham) since the foreign applications did not show the claimed invention, the appealed claims being drawn to a genus while the German priority applications show only one species. In that view the correspondence between the showing in the reference and priority applications would not be material.
We have a necessarily preliminary issue raised by the fact that the Gresham reference, applied to claims 1, 2, and 19, if applicable, would be dispositive of those claims. Its date of August 30, 1954 is prior to December 27, 1954, the date of the two German applications. Appellants present two contentions concerning the applicability of Gresham.
First, appellants urge that Gresham is not available as a reference since they may rely on a third German application, Z 4348 IVc/39c filed in Germany, August 3, 1954, for priority. The date of Z 4348 is more than a year prior to the date of the two U. S. parent applications of the appealed application, and thus does not satisfy the time requirement of 35 U.S.C. § 119. Apparently recognizing that they are not entitled to rely directly on Z 4348, appellants state:
* * * attention is directed to the applicants\' earlier copending application Serial No. 514,068 having the effective date for constructive reduction to practice in the United States as of the German priority application Z 4348 IVc/39c of August 3, 1954, which broadly discloses such metal alkyls in combination with the claimed second component * * *.
Although some 12 copending U. S. applications are mentioned in the appealed application, and two of them are specifically referred to as the instant copending parents both in the specification and oath, neither Z 4348 nor serial No. 514,068 is mentioned. There appears nothing of record which indicates that any relational status of either Z 4348 or serial No. 514,068 to the appealed application was claimed by appellants or accorded by the Patent Office. On the present record, the issue of whether there is any relation and whether appellants may be accorded those dates is not before us.
Second, the board held that the claimed first component species I A 1, alkali metal alkyls, is inclusive of the lithium aluminum tetraalkyls shown in Gresham, and that claims 1, 2 and 19 are thereby anticipated. The board stated:
Gresham et al. disclose an olefin polymerizing catalyst which comprises molybdenum chloride and a compound having at least one metal to hydrocarbon bond. Examples of the latter are Grignard reagents and lithium aluminum tetraalkyls. We are unable to agree with appellants\' assertion that the latter compounds do not fall within the scope of the term "alkali metal alkyls" in the appealed claims. However this may be, Gresham et al. also refer to "metal alkyls" and Shearer et al. show that alkali metal alkyls are commonly used in olefin polymerizing processes. We will sustain the rejection of claims 1, 2 and 19 as unpatentable over Gresham et al. Emphasis ours.
That portion of the disclosure of Gresham which was said to "also refer to `metal alkyls'" appears to be as follows:
It has also been known heretofore (U. S. Patents 2,212,155, 2,475,520, 2,467,234) that certain metal alkyls and Grignard reagents are capable of initiating the conversion of ethylene to solid polymers through a free radical mechanism at high pressures. * * * Emphasis ours.
Appellants argue that alkali metal alkyls are not inclusive of alkali metal aluminum alkyls of Gresham, either in fact or within the meaning which appellants intend. Appellants' state in their specification:
Suitable organo-alkali metal compounds for use in the present invention are alkali metal alkyls and aryls, for example lithium, sodium or potassium methyl, ethyl, propyl, isobutyl and higher (in excess of C5) alkali metal alkyls. Convenient higher alkyls are for instance those within the range of average composition of octyl or dodecyl or their mixtures. The higher-alkyls are without limitation to the number of carbon atoms. Examples of aryls which may be employed are: phenyl, tolyl,...
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