Fontijn v. Okamoto

Decision Date19 June 1975
Docket NumberPatent Appeal No. 74-594.
Citation518 F.2d 610
PartiesFONTIJN, Appellant, v. OKAMOTO et al., Appellees.
CourtU.S. Court of Customs and Patent Appeals (CCPA)

Caspar C. Schneider, Jr., John B. Pegram, New York City, attorneys of record, for appellant. Tom R. Vestal, Asheville, N. C., Davis, Hoxie, Faithfull & Hapgood, New York City, of counsel.

Mark A. Greenfield, New York City, Sherman & Shalloway, Washington, D. C., attorneys of record, for appellees.

Before MARKEY, Chief Judge, RICH, LANE and MILLER, Judges, and ALMOND, Senior Judge.

ALMOND, Senior Judge.

The junior party Fontijn appeals from the decision of the Patent and Trade-mark Office (PTO) Board of Patent Interferences in interference No. 97,765 awarding priority of invention to the senior party Okamoto et al. (Okamoto). We reverse.

Fontijn is involved on patent No. 3,447,308 based on a United States application serial No. 663,812, filed August 28, 1967, claiming the priority of a Netherlands application No. 66-12,628, filed September 8, 1966; and on a reissue application serial No. 230,815, filed March 1, 1972, which seeks to amend patent No. 3,447,308 by inserting a reference to United States application serial No. 580,817, filed September 20, 1966, and also seeks the benefit of Netherlands application No. 65-12,918, filed October 6, 1965. Okamoto is involved on application serial No. 43,101, filed June 3, 1970, as a continuation of serial No. 607,302, filed January 4, 1967, claiming the priority of a Japanese application No. 560/66 filed January 7, 1966.

The Subject Matter

The subject matter of the interference is a yarn which is useful as a reinforcing material in a variety of articles including automobile tires. The yarn consists of a plurality of bicomponent filaments each of which is composed of a matrix of one polymer and "a multiplicity of continuous ultrafine cores" of a second polymer incompatible with the first which are "distributed substantially uniformly throughout the longitudinal body of the matrix."

Count 1, taken from the Fontijn patent, is typical and reads as follows:

1. Yarn consisting of a plurality of composite filaments, each filament comprising at least two different incompatible synthetic linear high polymers, one polymer functioning as a matrix and the other consisting of a multiplicity of continuous ultrafine cores distributed substantially uniformly throughout the longitudinal body of the matrix, each core being characterized by its uniformity in cross-sectional dimension and the cross-sectional dimensions from core to core being of the same order of magnitude, said cores being further characterized by their substantially continuous nature. Emphasis added.

Counts 2-4 add limitations immaterial to the issues before us.

Background

Sometime prior to October 6, 1965, the party Fontijn, a resident of the Netherlands, apparently developed the concept of having a bicomponent filament with a multitude of continuous ribbon-like sub-filaments or "cores." On October 5, 1965, a Netherlands patent application No. 65-12,918 was filed on the product and a process for making it. A United States application serial No. 580,817 ('817), corresponding to Netherlands 65-12,918, was filed on September 20, 1966 and, pursuant to the provisions of 35 U.S.C. § 119, a timely claim for priority of the Netherlands application with supporting documents was also filed.

The '817 application, the disclosure of which is substantially similar to corresponding Netherlands application No. 65-12,918, describes "a synthetic fibrillary product * * * made up of a plurality of immiscible components which are finely distributed over the cross-section of the structure and which substantially occur as endless shreds or ribbon-like layers." Two embodiments of the invention are illustrated below as they appear in the drawings of the '817 application:

Fig. 4a shows a cross-sectional view of a disclosed fibrillary product in the form of a filament. Fig. 4b shows a cross-sectional view of an alternative embodiment in the form of a filament having a multilayered core surrounded by an outer sheath.

Fibrillary products, according to prior art techniques discussed in the '817 specification, had been produced by forcing a spinning mass consisting of a plurality of finely intermingled immiscible components through an extrusion orifice and then solidifying the product in one of several ways depending upon the characteristics of the component materials. The known process was modified, according to the specification, to produce the disclosed fibrillary product as follows:

Prior to being forced through the extrusion orifices into a solidifying zone, the components are finely intermingled by dividing each of the streams of the components into a main stream containing secondary sub-streams and having a uniform distribution pattern and in that the main stream is distributed over the various extrusion orifices so that a plurality of secondary sub-streams of each component is passed through each orifice.
Dividing and reuniting of the sub-streams may be effected only once in order to produce products having endless shreds of one component, i. e., filament-like strips or bodies that are embedded within the other component. However, according to this invention it is preferred that the dividing and reuniting of the sub-streams should be repeated several times in order to form a main stream of the spinning mass in which the components are arranged in a multi-layered structure. It has been found that in this way it is possible to obtain a finer intermingling of the components.
A product having a layered structure that is enveloped in a thin sheath (as shown in Figure 4b) may according to the invention be obtained by dividing the main stream into a plurality of composite streams containing both of said components and by surrounding each of the composite streams of liquid before passing them through the extrusion orifices, with a sheath-like liquid layer which is preferably formed by one of the components. In this regard, it will be appreciated that processes are known for the manufacture of composite threads that possess a sheath and a core.

Subsequent to October 6, 1965, the filing date of Netherlands application No. 65-12,918, Fontijn apparently determined that the ribbon-like nature of the cores disclosed in the Netherlands application could be further subdivided and changed to a substantially round configuration, and a subsequent Netherlands application No. 66-12,628 was filed on September 8, 1966, directed to this subject matter. A corresponding United States application serial No. 663,812 was filed on August 28, 1967. Thereafter, during the early part of 1968, the '817 application was expressly abandoned.

On June 3, 1969, Fontijn patent No. 3,447,308, involved in this interference, issued from application serial No. 663,812.1

The portion of the patent's disclosure considered particularly relevant by the board to its determination is as follows:

According to this invention, the system consists of feeding two polymers separately until they reach a mixing device capable of forming the polymer into a strongly laminated stream which is subsequently fed to the spinning orifices in a spinneret plate. According to the invention, the laminae which are to form the cores are finely divided in that before being distributed over the spinning orifices and while the same direction of flow is maintained, the multi-laminated stream, in a plane transverse to the direction of the laminae flow, is temporarily split up at least once into substreams with transverse dimensions of the order of magnitude of the lamina thickness in situ. The critical part of the apparatus is the disposition of at least one gauze screen and preferably several immediately before the spinneret plate. The gauze screen has a mesh width of approximately 2 x n, where n represents the thickness of the laminae at the gauzes of the core material formed in the process, which gauzes may, if necessary, be combined into a pack, at least one gauze of which has a relatively large mesh width.
It should be noted that the composition of these gauze screens is very critical. If the gauzes are too coarse or too small in number, then the filaments will continue to distinctly show a laminated structure. However, on the other hand, if the gauzes are too fine or too large in number, then it is found that in the case of several polymer combinations, the polymer is subject to unduly high degradation which causes spinning difficulties. However, with the use of the screen pack described above, an optimum fine distribution of the ultrafine core material in the basic matrix is obtained.

The board also considered the following description of the drawings:

Figure 3 reproduced below shows the pattern of the laminated stream of the spinning liquid after it has passed the combination of the gauzes 11. While passing through the gauzes, the laminae are divided into separate streams which, under the influence of surface tension and viscous forces in the spinning liquid, do not reunite into continuous layers after they pass through the gauzes but assume a substantially round cross section (see Figure 4 shown below).
In this way, such a large number of separate streams of the spinning liquid forming the cores are obtained that about 150 cores can be counted in one filament. This fine subdivision does not lead to degradation of the polymers and, as will be shown hereinafter, the several properties of these multifilament yarns are far more favorable than when the laminae are not split up by the gauzes.

The patent as issued contained no reference either to the '817 application or to corresponding Netherlands application No. 65-12,918. To insert such reference, reissue application serial No. 230,815 was filed on March 1, 1972, more than two years from the grant of the original patent.

The Okamoto development resulted in the filing in Japan of a...

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