Loukomsky v. Gerlich
| Decision Date | 16 March 1959 |
| Docket Number | Patent Appeal No. 6404. |
| Citation | 46 CCPA 805,264 F.2d 907 |
| Parties | Serge A. LOUKOMSKY, Appellant, v. Hans GERLICH, Appellee. |
| Court | U.S. Court of Customs and Patent Appeals (CCPA) |
Edward S. Irons, Harold J. Birch, and Burns, Doane, Benedict & Irons, Washington, D. C., for appellant.
Abraham J. Nydick, New York City, for appellee.
Before WORLEY, Acting Chief Judge, and RICH and MARTIN, Judges.
This appeal is from the decision of the Board of Patent Interferences of the United States Patent Office awarding priority of invention of the subject matter of the single count of Interference No. 87,749 to Gerlich, the junior party.
The invention is a coating process defined in the count as follows:
"A process for the production of well-adhering coatings on the surface of polyethylene articles which comprises applying thereto a solution containing an interpolymerization product of a major proportion of vinyl chloride and a minor proportion of a vinyl ester and drying the applied coating."
The count originated in Gerlich's patent No. 2,689,197 granted September 14, 1954 on an application filed April 16, 1952. Loukomsky is involved in the interference on an application filed February 9, 1955 for reissue of his patent No. 2,628,208 granted February 10, 1953 on an application filed June 18, 1951, and is therefore the senior party.
Neither party took testimony, but Gerlich filed a motion to dissolve on the ground that Loukomsky had no right to make the count, which motion was denied by the Primary Examiner. At final hearing the Board of Patent Interferences, disagreeing with the Primary Examiner, held that neither Loukomsky's patent nor his reissue application, which contains a specification identical with that of the patent, disclosed the invention in issue. The board, therefore, awarded priority to Gerlich.
The sole issue presented by this appeal is whether the Loukomsky patent discloses the subject matter of the interference count so that he is entitled to make the count for the purpose of contesting priority with Gerlich.
There appears to be no dispute as to what is disclosed by the Loukomsky patent, so far as is here pertinent. Both the examiner and the board found, and we agree, that the patent discloses the coating of polyethylene articles with a composition containing a solution of an interpolymerization product of vinyl chloride and a vinyl ester (vinyl acetate). The patent states that the preferred copolymer contains 10% to 15% of vinyl acetate, thus satisfying the requirement of the count that the vinyl chloride shall be a major proportion of the interpolymerization product and the vinyl ester a minor proportion.
It was also correctly held by both the examiner and the board that Loukomsky did not contemplate coating with the copolymer solution alone, but considered it essential that the coating composition should contain at least one other ingredient. More specifically, Loukomsky contemplated the use of a coating composition consisting of a mixed solvent medium having higher and lower boiling fractions, with the vinyl copolymer in solution in the medium, and about 20% by weight of another resin dispersed therein, in particulate form.
There is no controversy as to what Loukomsky discloses. The issue is whether, on the basis of his disclosure, he can make the count.
It is elementary that, in the absence of ambiguity, the counts of an interference are to be given the broadest interpretation which they will reasonably support. Stern v. Schroeder, 36 F.2d 518, 17 CCPA 690; Hartog v. Long, 47 F.2d 365, 18 CCPA 993; Field v. Stow, 49 F.2d 840, 18 CCPA 1437.
We agree with the Primary Examiner that the instant count is not ambiguous, but is merely broad and that the statement that the solution contains an interpolymerization product does not exclude the presence of other ingredients, whether in solution, suspension or other form of dispersion. A solution "containing" a specified ingredient does not cease to contain it merely because other ingredients are added. Moreover, as was pointed out by the examiner, the Gerlich patent, in which the count...
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...claim corresponding to the subject matter of an interference can be included in an application for a reissue patent. (Loukomsky v. Gerlich, 264 F.2d 907, 46 CCPA 805 (1959)), whether a claim in a reissue application is drawn to an invention different from the invention claimed in the origin......
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