Sze v. Bloch, Patent Appeal No. 8697.

• Decision Date: 27 April 1972
• Docket Number: Patent Appeal No. 8697.
• Parties: Benjamin Chiatse SZE, Appellant, v. Godfrey BLOCH, Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

173 USPQ 498, 458 F.2d 137 (1972)

Benjamin Chiatse SZE, Appellant, v. Godfrey BLOCH, Appellee.

Patent Appeal No. 8697.

United States Court of Customs and Patent Appeals.

April 27, 1972.

A. Newton Huff, Wilmington, Del., attorney of record, for appellant; Gerald A. Hapka, Arlington, Va., of counsel.

S. Augustus Demma, New York City, attorney of record, for appellee.

Before RICH, ALMOND, BALDWIN and LANE, Judges, and MALETZ, Judge, United States Customs Court, sitting by designation.

ALMOND, Judge.

This is an appeal from the decision of the Patent Office Board of Patent Interferences awarding priority to appellee, Godfrey Bloch, on the ground that appellant, Benjamin Chiatse Sze, cannot make the counts in issue.

The three counts in issue correspond to claims of the Bloch patent,¹ which were copied by Sze in his application.² After Sze copied the claims from the Bloch patent, a first interference was set up.³ Bloch then moved to dissolve the interference on the ground that Sze could not make the counts. The primary examiner granted this motion, dissolved the interference, and rejected ex parte the three claims which Sze had copied from the Bloch patent on the ground that they were not supported by the disclosure of Sze's application. Sze appealed to the Board of Appeals. The examiner, in his Answer, withdrew the rejection of the claim corresponding to count 3, but maintained the rejection of the claims corresponding to counts 1 and 2. The board reversed, finding that the Sze disclosure was sufficient to support the rejected claims. As a result, a second interference (the present one) was declared with the counts the same as those involved in the prior interference. Again Bloch moved to dissolve the interference on the ground that Sze could not make the counts. Bloch also moved to be accorded the benefit of the filing date of his parent application. The primary examiner granted Bloch's motion for the benefit of the earlier filing date, but in accordance with Janeway v. Nystrom, 77 USPQ 229 (Com.Pat.1946), deferred consideration of the motion to dissolve until final hearing. At final hearing the Board of Patent Interferences held that Sze could not make the counts and, therefore, found it unnecessary to consider whether Bloch is entitled to the earlier filing date. Sze appeals from that decision.

The invention in issue relates to a bulked dimensionally stable singles yarn. Singles yarns (i.e., yarns that have not been plied) of continuous synthetic filaments, which have a uniform cross-section, are much denser than yarns of natural staple fibers, which do not have a uniform cross-section. In order to produce a yarn of continuous synthetic filaments which resembles staple fiber yarn, the filaments may be bulked by crimping. However, strands of crimped filaments are not dimensionally stable since stretching of the strand will straighten out the filaments. To achieve dimensional stability, the crimped filaments may be combined with straight, stress-bearing nonelastic filaments, shich limit stretching of the strand. The counts in issue are directed to such a yarn.

Count 1 is illustrative:

1. A bulked dimensionally stable singles yarn composed of a plurality of continuous filaments, certain of said continuous filaments being uniformly crimped throughout at least a portion of their length to provide bulk and others of said continuous filaments being in relatively straight form to provide dimensional stability, said crimped and straight filaments being randomly disposed throughout the cross-section of said yarn.

The Bloch patent, wherein the counts arose, discloses that:

In accordance with one embodiment of the present invention two bundles of continuous filaments composed of the same or of different synthetic materials and derived from separate spinnerets feeding into the same or into different spinning baths are so processed that the two bundles of filaments have different shrinkage characteristics. These bundles are then combined and subjected to treatment adapted to shrink the various filaments in the bundle.

As a result of this differential shrinkage one group of filaments becomes shorter than the other group thereby causing the longer filaments to pull up and deviate from a straight line condition into gathers, puckers, folds, loops, or other shapes, herein referred to generally as crimps, at various points along their length and thereby form a bulked yarn.

Elsewhere in the patent it is disclosed that:

The bundles can be combined by opening the individual bundles as by an air jet or by separating the filaments by suitable guides and combining the bundles with the various filaments interleaved uniformly or with one group predominantly on the outside and the other group predominantly on the inside.

Also two bundles of different characteristics may be obtained by extrusion of two materials of different compositions from a composite spinneret wherein one material is extruded, for example, through openings disposed around the center of the spinneret and the other composition is extruded from openings disposed around the periphery so that the filaments from the latter openings are disposed largely on the outside of the finished bundle while the filaments from the first openings are disposed on the inside.

Appellant's applications⁴ also disclose a bulked dimensionally stable singles yarn "consisting of a self-crimpable or composite member * * * and a stress-bearing, single-component filament." It is stated that, while such yarns "may be prepared by blending a single component stress-bearing yarn with a sheath-core crimpable yarn, the mixture may be more conveniently produced by * * * a filament forming extrusion assembly * * * which comprises a spinneret plate containing a multiplicity of apertures * * *." Example I, for instance, describes a process whereby ten outer orifices of a spinneret extrude crimpable filaments while at the same time five inner orifices extrude stress-bearing filaments. "The polymers, at 270° C., are spun into air at 25° C. and wound up at 1200 yards per minute." Thereafter, the yarn is first stretched and then shrunk to form crimps in the crimpable filaments. The stress-bearing filaments remain relatively straight. As an alternative, Sze also discloses a less preferred process of extruding the crimpable and stress-bearing filaments separately, plying the filaments with a light twist, and treating the yarn to bulk it.

The substantive issues in this case all center around the limitation in the count that the crimped and straight filaments are "randomly disposed" throughout the cross-section of the yarn. Neither the Bloch nor Sze disclosures explicitly state that random disposition is achieved. Bloch contends that his preferred process of separately extruding the two types of filaments and then combining them does, however, result in random disposition, whereas, a co-spinning process does not. Therefore, in his view his parent application, disclosing a process of combining the separately extruded filaments, supports the count, and he should be entitled to the benefit of the filing date of that application. Bloch argues that, on the other hand, Sze cannot make the counts since neither...