Guyer v. Cramer

• Decision Date: 20 June 1963
• Docket Number: Patent Appeal No. 6977.
• Citation: 50 CCPA 1386,318 F.2d 757
• Parties: August GUYER, Pascal Matile, Ernst Peterhans and Werner Zollinger, Appellants, v. Charles Robert CRAMER, Hans-Peter Meyer and Walter Feist, Appellees.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

50 CCPA 1386, 318 F.2d 757 (1963)

August GUYER, Pascal Matile, Ernst Peterhans and Werner Zollinger, Appellants, v. Charles Robert CRAMER, Hans-Peter Meyer and Walter Feist, Appellees.

Patent Appeal No. 6977.

United States Court of Customs and Patent Appeals.

June 20, 1963.

William D. Denson, Morgan, Finnegan, Durham & Pine, New York City (Louis E. Marn, Hobart N. Durham and John C. Vassil, New York City, of counsel), for appellants.

Martin J. Brown, Washington, D. C. (John Boustead, New York City, of counsel), for appellees.

Before WORLEY, Chief Judge, and RICH, MARTIN, SMITH, and ALMOND, Judges.

RICH, Judge.

This appeal is from the decision of the Board of Patent Interferences of the United States Patent Office awarding priority of the subject matter of the single count of Interference No. 90,053 to the senior party Charles Robert Cramer et al.¹

August Guyer et al. are involved in the interference on their application Serial No. 622,733, filed November 19, 1956, for "Process for the Pressure Synthesis of Urea," claiming a convention priority date based on their Swiss application dated April 16, 1956.

Cramer et al. are involved in the interference on (1) their continuation-in-part application Serial No. 659,499, filed May 16, 1957, for "Process for Preparing Pure Urea," and (2) their parent application Serial No. 506,092, filed May 4, 1955, claiming a convention priority date based on their Swiss application dated May 17, 1954.

The single simple issue is whether Cramer et al. are entitled to the U. S. filing date of their parent application, Serial No. 506,092, as a constructive reduction to practice of the invention of the count. It is not necessary to consider either party's Swiss application because, if Guyer et al. are entitled to the May 4, 1955, parent United States filing date, their priority is established, as the board held.

The invention relates to a process of synthesizing pure urea which will not lead to the corrosion of the vessels in which it is undertaken and consequent contamination of the urea. Appellee's application Serial No. 659,499 states (all emphasis ours):

"It is a known fact that in the synthesis of urea from carbon dioxide and ammonia the use of high temperatures of about 153°C, and above, leads to prohibitive corrosion of the vessels in which the ammonium carbamate is formed (see Frejacques `Chimie et Industrie\' 60, 2211 (1948).). In our own operations, we have found that at operating temperatures of 160-190° C. urea produced in ordinary steel vessels becomes red colored by the iron oxide formed due to corrosion. The useful life of the apparatus is thereby considerably decreased, and this is, of course, a great disadvantage to the economy of the process.

"Another drawback consists in the difficulty of removing the iron which contaminates the urea. * * *

* * * * * *

"According to the invention of our copending application, Ser. No. 506,092, it has been found that corrosion can be considerably suppressed in the preparation of urea from ammonia and oxygen-free carbon dioxide at elevated temperature and increased pressure in rust-proof apparatus, when oxygen is added to the gases used at the start.

* * * * * *

"Generally stated, the present invention comprises the steps of first eliminating the sulfur contained in CO2 to be used in the synthesis of urea, to an amount below 1 ppm., then adding oxygen in an amount ranging between 0.01 and 0.05% by volume based on the amount of CO2 present, and thereafter reacting the gas thus prepared with gaseous NH3 at elevated temperature between 160 and 190° C., and under increased pressure in the range of 150-200 atm."

The count, which was drawn by the Primary Examiner and suggested to the parties, reads:

"In the synthesis of pure urea by the reaction of carbon dioxide and a stoichiometric excess of ammonia at elevated pressures and temperatures in apparatus having stainless steel surfaces exposed to the reaction medium, the step of decreasing the corrosive effect of said medium and the turbidity of the product urea by introducing oxygen gas into said reaction with said reactants in an amount equal to 0.01% to 0.05% by volume on the amount of carbon dioxide introduced." Emphasis ours.

The issue presented by this appeal may now be more particularly stated to be whether the parent application, Serial No. 506,092, of Cramer et al. discloses the basis for determining the amount of oxygen to be used which is required by the count and explicitly set forth by Cramer et al.'s later application Serial No. 659,499. That basis is that the amount of oxygen used be "equal to 0.01% to 0.05% by volume on the amount of carbon dioxide introduced." Emphasis ours.

The Primary Examiner, and the board in affirming his decision on motions, held that the above count was supported by the disclosure of application Serial No. 506,092. We do not agree.

The board in its opinion admitted that

"It is true that the exact language of the last two lines of the count is not found in the Cramer et al. earlier case application Serial No. 506,092, namely, `by volume on the amount of carbon dioxide introduced.\'"

The board also pointed to certain portions of the parent application disclosure which

"* * * do not describe the addition of the oxygen or oxygen-containing gas to carbon dioxide. The first two disclosures definitely describe the addition of oxygen to a mixture of ammonia and carbon dioxide, the `starting gas.\' The third disclosure is susceptible to the same interpretation, but it may be also interpreted to mean that each of the gases is separately introduced."

The portions of this disclosure, in parent application Serial No. 506,092, which we feel are particularly pertinent are the following (the emphasis being ours):

"When carbon dioxide is used, which was obtained in the ammonia synthesis gas preparation and which, as a rule is free of oxygen, we have found that the urea resulting from the synthesis is of brown color, due to its iron content. * * *

* * * * * *

"If, under the same conditions, in addition to carbon dioxide and ammonia in the starting gas,

...