Frey v. Wagner, Patent Appeal No. 3737.

• Decision Date: 25 January 1937
• Docket Number: Patent Appeal No. 3737.
• Citation: 87 F.2d 212
• Parties: FREY v. WAGNER.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

87 F.2d 212 (1937)

FREY v. WAGNER.

Patent Appeal No. 3737.

Court of Customs and Patent Appeals.

January 25, 1937.

Barry & Cyr, of Washington, D. C. (Robt. E. Barry and Armand A. Cyr, both of Washington, D. C., of counsel), for appellant.

Edward H. Lang, of Chicago, Ill. (Thomas E. Scofield, of Kansas City, Mo., and William S. McDowell, of Columbus, Ohio, of counsel), for appellee.

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

GRAHAM, Presiding Judge.

This is an appeal from the decision of the Board of Appeals of the United States Patent Office, affirming the decision of the Examiner of Interferences which awarded priority in the subject matter of the interference to the party Wagner. The interference is between the patent of the party Frey, No. 1,847,240, dated March 1, 1932, issued upon an application filed June 6, 1930, and an application of the party Wagner filed October 10, 1932. The single count of the interference was copied from the Frey patent by the party Wagner, who, at the same time, requested an interference. Said count is as follows: "In a process for obtaining low boiling point hydrocarbon liquid polymers predominantly of the motor fuel range from olefinic hydrocarbon gases, continuously compressing said gases to a pressure between 500 and 2000 pounds per square inch, subsequently passing said gases under such pressure through an elongated passageway of restricted cross sectional area while heating the gases therein to a temperature sufficient to initiate polymerization of said gases, then passing said gases through an enlarged zone under said pressure and at slower velocity while maintaining the gases in said zone for a period of time sufficient to obtain an exothermic reaction and at temperatures between 700 and 1000° F. without introducing any extraneous heat into the zone, and then separating low boiling liquid polymers so produced."

The petition for appeal recites that a former interference upon the same subject matter had been declared between said patent and an application of the party Wagner, filed April 11, 1929. This former interference was dissolved by the Examiner of Interferences on March 24, 1933, on the ground that the single count of the interference was not sustained by the disclosure of the Wagner application, and this decision was affirmed by the Board of Appeals upon appeal.

In the interference at bar, the party Frey rested upon his date of filing, and took no evidence. The party Wagner took evidence upon the question of his dates of conception and reduction to practice.

The matter having been submitted to the Examiner of Interferences, a decision awarding priority of invention to the party Wagner was made, and this, upon appeal, was affirmed by the Board of Appeals.

It appears from the record that the Frey patent was issued before the date of filing of the party Wagner's application. Therefore, the burden rested upon the party Wagner to maintain his case by evidence showing a prior conception and reduction to practice, beyond a reasonable doubt. The Examiner of Interferences and the Board of Appeals agreed in the conclusion that he had successfully maintained the burden thus resting upon him, and that prior to the date of filing of the Frey application, the party Wagner had conceived and reduced to practice the invention which is the subject matter of this interference.

The subject matter of the interference is fairly well disclosed by the count of the interference heretofore quoted. The principal question for decision here is whether the count of the interference reads upon the apparatus and process employed by the party Wagner. Counsel for Frey insist that the process practiced by Wagner does not satisfy the count, and in the decision of the matter consideration must necessarily be given to the particular language employed in the count.

The party Cary R. Wagner was, at the time the evidence was taken, chief chemist for the Pure Oil Company of Columbus, Ohio. After graduating from Wooster College and Purdue University, beginning with the first week in August, 1918, he had been continuously employed as a chemist in oil processing, and, since March, 1926, was employed in investigations of vapor phase methods of cracking oils. In this work he became interested in the utilization of gases produced as the result of vapor phase cracking processes, with the idea of ultimately making use of the same for motor fuel. At his instigation, the Pure Oil Company installed three units of the so-called gyro process, at Cabin Creek, W. Va., and began at once to prepare gas oil from the olefinic hydrocarbon gases produced in the gyro process. On the 10th of April, 1928, he prepared a sketch of an apparatus, and of a process which he desired to have tried by his company, in which high pressure and high temperatures were employed to polymerize such gases. From this sketch, an experimental apparatus was built, which used a compressor, a heater, a reaction chamber, and an accumulator tank. The heating coil was made of ¼-inch double extra strong pipe having a diameter of approximately .25 inches. The reaction chamber was made of iron pipe with an inner diameter of 1½ inches, and was 3 feet in length. This apparatus was operated from August to September, 1928. At that time the party Wagner concluded the reaction chamber was too small, and thereupon a new reaction chamber of heavy pipe, 4 inches in inner diameter, was procured and substituted for the first reaction chamber.

The apparatus was run with this new reaction chamber until about October 17, 1928, when, on the seventh run, it was found that the reaction chamber was swelling, and because of danger of an explosion, the use of it was discontinued. Thereupon a reaction chamber was prepared with a steam chamber fitted to it, by means of which steam could be circulated about the chamber to control its temperature. This plant was then operated until October, 1929, when it was dismantled and shipped to Marcus Hook, Pa., where the company was maintaining an experimental gyro gas unit. The experimental plant at Marcus Hook was erected in November,...