Jepson v. Coleman, Patent Appeal No. 6919.
| Decision Date | 13 March 1963 |
| Docket Number | Patent Appeal No. 6919. |
| Citation | 314 F.2d 533 |
| Parties | Ivar JEPSON, Appellant, v. Robert E. COLEMAN, Jr., and Calvin D. MacCracken, Appellees. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
George R. Clark, Mason, Kolehmainen, Rathburn & Wyss, Walther E. Wyss, Chicago, Ill., for appellant.
G. Kendall Parmelee, Curtis, Morris & Safford, New York City, for appellees.
Before WORLEY, Chief Judge, and MARTIN, SMITH, and ALMOND, Judges.
This appeal is from the decision of the Patent Office Board of Patent Interferences which awarded priority of invention to senior party Coleman et al. in Interference No. 88,406. That interference involves an application Serial No. 309,416 filed September 13, 1952 by the senior party, Coleman et al. and a patent 2,753,435, granted July 3, 1956, upon an application Serial No. 425,192 filed April 23, 1954 by the junior party, Jepson.
The interference involves five counts which correspond to claims 1 through 5 of Jepson's patent. Counts 1 and 2 read:
Counts 3 and 5 correspond generally to count 1. However, count 3 further specifies that the means for circulating the fluid is connected to the headers at a point midway between the ends thereof and recites "control means for controlling the temperature of said blanket." Count 5 specifies that the means for controlling the temperature of the blanket is responsive to the temperature of the fluid in one of the headers. Count 4 corresponds to count 2 but also has the additional limitation that the means for controlling the temperature of the blanket is responsive to the temperature of the fluid in one of the headers.
The five counts are specific to a thermal blanket containing a plurality of small flexible U-shaped fluid carrying tubes in a plurality of parallel passageways located in the blanket. A pair of flexible headers extend along one end of said blanket and are generally perpendicular to said passageways. One leg of each U-shape tube is connected to one of said headers while the other leg is connected to the other header. In operation, warm liquid is circulated through the U-shaped tubes by means of the headers, one header acting as an inlet header and the other header serving as an outlet header for the circulating liquid.
The Coleman et al. application describes a thermal blanket one embodiment of which is shown in Figure 1 of the Coleman et al. application, set forth below:
This figure shows a thermal blanket 8 including a pair of fabric layers 10 and 11 sewed together along the outside edges and along spaced lines 13 to provide channels for holding flexible tubing. The parallel rows of stitchings 13 continue out closely adjacent to one end of the blanket for holding the bight of each U-shaped tube in position between the fabric layers. To provide a uniform temperature throughout the area of the blanket, tubes 12 are connected in parallel between inlet and outlet headers 16 and 18. The header units 16 and 18 are located midway of the blanket's end and are connected to the inlet and outlet tubes 26 and 28 for heat exchange fluid.
The Jepson patent shows and describes a thermal blanket as specified in the counts before us and as shown in Jepson's Figure 2 set forth below:
Appellees, Coleman et al., do not contend that the construction shown in their Figure 1 supports the counts. However, they contend that, when their Figure 1 is considered with other relevant portions of the specification, the application of Coleman et al. as filed clearly discloses an alternative way of constructing the blanket to provide uniform temperature across the blanket, which alternative way supports the counts. They take the position that, in this alternate construction, a pair of flexible header tubes of large diameter are substituted for the small headers 16 and 18 and for the connecting portions of the various U-shaped tubing circuits which extend along the edge of the blanket to the compact headers or junction units 16 and 18.
The board found that appellees did have the right to make counts 1-5. It held that appellee's Figure 1, when considered with the paragraph beginning at page 5, lines 9 et seq. of appellees' application establishes that appellees disclose two ways of making the blanket. That paragraph is as follows:
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Ariad Pharm.S Inc v. Eli Lilly And Co.
... ... Chen, Solicitor, United States Patent and Trademark ... Office, of Arlington, VA ... 1301, 306 F.2d 494 (1962); ... and Jepson v. Coleman, 50 C.C.P.A. 1051, ... 314 F.2d 533 (1963), ... believe the appeal should have been returned to the panel for resolution of ... ...
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University of Rochester v. G.D. Searle & Co., Inc., 03-1304.
...Moreover, the pre-1967 CCPA cases mentioned in Rochester also shed little light on the modern written description requirement. For instance, Jepson does not evince support for Eli Lilly. Rather, Jepson, which does not expressly mention written description at all, decided an interference — a......
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...the disclosure [but] whether the application necessarily discloses that particular device." (quoting Jepson v. Coleman, 50 C.C.P.A. 1051, 314 F.2d 533, 536, 136 USPQ 647, 649-50 (CCPA 1963))). New Railhead's repeated assertions that Cox was at all times in possession of the claimed inventio......
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Reese v. Hurst
...v. Okamoto, 518 F.2d 610, 186 USPQ 97 (CCPA 1975). The parent application must clearly support the counts. Cf. Jepson v. Coleman, 50 CCPA 1051, 314 F.2d 533, 136 USPQ 647 (1963). Every limitation of a count is material. Storchheim v. Daugherty, 56 CCPA 1147, 410 F.2d 1393, 161 USPQ 679 (196......
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...separate from the enablement requirement in decisions even before Ruschig. See Rochester, 358 F.3d at 923 (citing Jepson v. Coleman, 314 F.2d 533, 536 (C.C.P.A. 1963); In re Moore, 155 F.2d 379, 382 (C.C.P.A. 1946); In re Sus, 306 F.2d 494, 497 (C.C.P.A. 1962)). But see Univ. of Rochester v......