In re Marden, Patent Appeal No. 2632.

• Decision Date: 25 March 1931
• Docket Number: Patent Appeal No. 2632.
• Citation: 47 F.2d 958
• Parties: In re MARDEN et al.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

47 F.2d 958 (1931)

In re MARDEN et al.

Patent Appeal No. 2632.

Court of Customs and Patent Appeals.

March 25, 1931.

Max F. Reges, of Bloomfield, N. J. (Raymond Jones, of Washington, D. C., of counsel), for appellants.

T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.

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

BLAND, Associate Judge.

From a decision of the Board of Appeals of the United States Patent Office, affirming the decision of the Examiner, refusing to allow claims 9 to 12, inclusive, and 14 to 19, inclusive, on the ground that the claims defined nothing inventive over the prior art, the applicants have appealed here. Claims 9 to 12 are for a method of producing ductile vanadium, and claim 9 is regarded as illustrative of the method claims. Claims 14, 15, 16, 17, 18, and 19 are article claims and these with claim 9 are as follows:

"9. The method of preparing ductile vanadium which comprises reducing an oxide of vanadium to form vanadium powder, slowly heat-treating the vanadium in a high vacuum until substantially all the adsorbed and absorbed gases are removed, and then fusing said powder to remove any hydrogen remaining.

"14. A coherent homogeneous ductile body of vanadium.

"15. A pure ductile homogeneous body of vanadium.

"16. A wire formed of ductile vanadium.

"17. A filamentary conductor of ductile vanadium.

"18. An electrode formed of ductile vanadium.

"19. A form of vanadium which is ductile and homogeneous."

The process claims relate to a process for preparing vanadium so that it will be ductile. The metal in its ductile state may be made into filaments for use in various electrical arts. The process consists of taking oxide of vanadium and reducing the same to a form of vanadium powder. This is slowly heat treated in a high vacuum until substantially all the adsorbed and absorbed gases are removed. The powder is then fused to remove any hydrogen remaining. A filament may then be formed by cold working the fused body of vanadium.

It is contended by appellants that they were the first to produce ductile vanadium and that they are not only entitled to all of their process claims but that they are entitled to a patent on the article, ductile vanadium, in its various forms.

It is conceded by counsel on both sides that ductile or malleable vanadium is nothing more or less than vanadium freed from all of its impurities and that all pure vanadium is ductile.

The Board of Appeals allowed certain method claims relating to the method of producing the substantially pure metal powder and rejected the method claims at issue relating to the vacuum heat-treating process, on the references Kuzel et al., 1,088,909, March 3, 1914, and Liebmann, 1,111,698, September 22, 1914, and also referred to the patent to Von Bolton, 799,441, September 12, 1905. In the decision of the Board of Appeals the following language is used:

"We find nothing patentable in the rejected claims over these references. Attention is also called to the decision of the Circuit Court of Appeals, 3rd Circuit in General Electric Co. v. De Forest Radio Co. et al., 28 F.(2d) page 641, in which claims exactly parallel to the article claims 14 to 19, inclusive, of the present case were held invalid on grounds which are equally applicable to these claims. Claims 14-19, inclusive, are further held unpatentable in view of this decision. The brief contends that the decision is not in point because the Just and Hanaman patent No. 1,018,502 disclosed as prior art a coherent, homogeneous, substantially pure tungsten filament whereas in the present case the prior art does not disclose vanadium having these characteristics. We do not understand that the...