In re Mason

• Decision Date: 07 February 1938
• Docket Number: Patent Appeal No. 3884.
• Citation: 94 F.2d 220
• Parties: In re MASON.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

94 F.2d 220 (1938)

In re MASON.

Patent Appeal No. 3884.

Court of Customs and Patent Appeals.

February 7, 1938.

Roy W. Johns, of Chicago, Ill., for appellant.

R. F. Whitehead, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for Commissioner of Patents.

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

LENROOT, Associate Judge.

This appeal involves a review of a decision of the Board of Appeals of the United States Patent Office, affirming a decision of the Examiner rejecting all of the claims of appellant's application, eight in number, upon the grounds hereinafter stated. Claims 1 and 2 are method claims, and claims 3 to 8, inclusive, are apparatus claims. Claims 1 and 3 are illustrative of the claims before us, and read as follows:

"1. The method of separating the silicious and phosphatic constituents of oiled fine mineral phosphates which comprises supplying said mineral to a screen under water, said screen having holes larger than the greater part of the phosphatic constituents, and imparting relative motion to said screen and mineral, whereupon the silicious constituents of the mineral pass through the screen and the phosphatic constituents thereof move along the screen under the water.

"3. In separating apparatus for separating the silicious and phosphatic constituents of oiled fine mineral phosphates, a container, a movable screen within the container, means for maintaining a liquid level above the screen, means for supplying material to be separated to the screen, and means for imparting motion to the screen to effect separation of the material into a constituent passing through the screen and the constituent passing over the screen, said screen having holes larger than the greater part of the constituent passing over the same."

The references cited are: Fuller, 894, 879, August 4, 1908; McCoy et al., 2,017,468, October 15, 1935.

The claimed invention is described in the Examiner's statement as follows: "This application relates to method and means for the concentration and recovery of phosphate values from sands or fine material. These fines are the material passing through screens of one-sixteenth to one-twentieth inch mesh. In the recovery of the mineral the material is first scoured and then the extremely fine slimes are washed therefrom through operation of well known processes. The material then has mixed with it a small proportion of an oil such as heavy petroleum tar or fuel oil, preferably containing soap or other emulsifying action. This oil-treated material is passed to a screen submerged below the surface of water. The mesh of the screen is of such size that all of the unoiled material will pass therethrough. When the oiled material is passed to the screen, the silica sand will continue to pass through the screen, but the phosphatic materials will no longer pass through the openings of the screen but will slide along the surface of the screen and may be recovered separately from the sand. The applicant does not give any explanation of this action. The apparatus is mounted in a tank provided with a sloping bottom. A cylindrical screen is arranged to rotate on an inclined axis in the tank with suitable provision for separately receiving the material passing over the screen from the material passing through the screen. The tank is provided with an overflow weir which is above the level of the bottom of the screen."

It appears that the application of appellant was involved in an interference with an application of George H. McCoy et al., interference No. 68521, upon two counts reading as follows:

"1. The method of separating phosphatic materials from sand and other impurities which consists in agglomerating the phosphatic material while leaving the sand and other impurities in their original physical form and causing the mass to pass down an inclined screen submerged in water, of a size permitting the sand and other impurities to pass therethrough and not the agglomerated phosphatic material.

"2. The process which consists in mixing a mass of phosphatic material, sand and other impurities which exist in particles of substantially the same size, with an emulsion of oil, soap and water, whereby to agglomerate the phosphatic material to form particles of larger size, then passing the mass so treated over an inclined screen submerged in water and of a mesh size permitting the sand and impurities to pass therethrough and the agglomerated phosphatic material to pass thereover."

This interference was decided adversely to appellant upon a concession by him, as appears from the following letter of the Examiner of Interferences, dated May 17, 1935:

"A concession by Mason, the senior party, to McCoy, Wright and Hall, having been filed and said concession having been construed as covering all common patentable subject matter and otherwise found to comply with the requirements of Rule 125, priority of invention of the subject matter in issue is hereby awarded to George H. McCoy, David M. Wright and J. Pankey Hall, the junior party.

"The said instrument is construed as a waiver of the right of appeal, and no time for appeal is therefore set.

"In view of the above concession, the motions which were set to be heard before the primary examiner on May 15, 1935, are dismissed."

It appears that on May 24, 1935, appellant's application here involved was assigned to Swift & Co. Fertilizer Works, a corporation, and that, Mason being deceased, this application is prosecuted by said corporation.

It further appears that at the time of the declaration of the interference, April 6, 1934, the said Swift & Co. Fertilizer Works was, through assignment, the owner of the McCoy et al. application, and that on October 15, 1935, a patent was issued to said McCoy et al. as assignors to said Swift & Co. Fertilizer Works; said patent being one of the two references cited in the instant case.

This patent discloses the same process as is disclosed by appellant; the only difference being that in appellant's application specific proportions of oil and soap are given as preferred, but the application states: "The oil, soap and water may be employed in any suitable proportions to secure an emulsion. * * *"

While the specification of the McCoy et al. patent, apart from the claims, does not disclose the use of a screen having holes larger than the greater part of the phosphate constituents, both claims 11 and 12 of the patent specifically include this element.

Counts 1 and 2 of the interference are claims 1 and 3 of said patent. In addition, ten other claims were included in the patent, among which are the following:

"11. The method of...