Buchanan v. Burrage, Patent Appeal No. 2359.

• Decision Date: 28 May 1930
• Docket Number: Patent Appeal No. 2359.
• Citation: 17 CCPA 1194,41 F.2d 98
• Parties: BUCHANAN v. BURRAGE.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

17 CCPA 1194, 41 F.2d 98 (1930)

BUCHANAN v. BURRAGE.

Patent Appeal No. 2359.

Court of Customs and Patent Appeals.

May 28, 1930.

H. C. Bierman, of New York City, for appellant.

Odin Roberts, of Boston, Mass., for appellee.

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.

BLAND, Judge.

Appellant has appealed from the decision of the Board of Appeals, awarding priority to the party Burrage upon the following counts in interference:

"1. A rubber accelerator comprising a mixture of diphenylguanidine and ditolylguanidine.

"2. A rubber accelerator comprising a mixture of diphenylguanidine and ditolylguanidine, the melting point of said mixture being lower than the melting point of the major constituent.

"3. A rubber accelerator comprising a mixture of diphenylguanidine and ditolylguanidine, the melting point of said mixture being lower than the melting point of either constituent.

"4. A rubber accelerator comprising a mixture of diphenylguanidine and ditolylguanidine, and having an accelerating value approximately equal to that of ditolylguanidine."

Buchanan filed application for a patent on a rubber accelerator and method of making the same and after due proceedings obtained a patent, No. 1,593,385, on July 20, 1926. Later the primary examiner suggested that an interference should be declared on the subject-matter of claim 1. The Burrage application had been on file in the Patent Office prior to the filing of the application of Buchanan. Burrage copied 4 claims of the Buchanan patent, and interference was declared thereon. Buchanan moved to dissolve on the theory that Burrage could not make the claims. The law examiner denied the motion. His view was sustained by the Examiner of Interferences and by the Board of Appeals.

The invention in issue, as disclosed in the Buchanan patent, consists of a mixture of two compounds, namely, DPG and DOTG, both of which had been known and used as rubber accelerators. Buchanan claims to have discovered, first, that mixtures of these two substances in various proportions are mutually soluble; second, that the melting points of these mixtures differ materially from the melting points of the individual constituents; third, that a eutectic mixture containing approximately equimolecular parts of the two substances had a relatively low melting point, much lower than the melting points of either of the two constituents; fourth, that these mixtures have high accelerating values, and particularly the eutectic mixture which has an activity equal to that of DOTG.

The object of the claimed invention is to enable the rubber manufacturer to use with good results larger quantities of the cheaper accelerator and thus reduce manufacturing costs.

Appellee filed no brief and made no appearance in this court.

In the decision of the Board of Appeals is found an apt statement of the case, and we can do no better than to copy it:

"Count 1 is identical with claim 16 of Burrage which is one of his...