Fontijn v. Okamoto
Decision Date | 19 June 1975 |
Docket Number | Patent Appeal No. 74-594. |
Citation | 518 F.2d 610 |
Parties | FONTIJN, Appellant, v. OKAMOTO et al., Appellees. |
Court | U.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.
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 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.
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:
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:
The board also considered the following description of the drawings:
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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