In re Thomas (178 F.2d 412, 1949)

JACKSON, Judge.

This is an appeal from a decision of the Board of Appeals of the United States Patent Office affirming that of the Primary-Examiner, rejecting all of the claims, 32 to 37, inclusive, and 40 to 45, inclusive, of an application for a patent, serial No. 502,828, filed September 17, 1943, alleging new and useful improvements in “Insecticidal Compositions.”

It is stated in the application that the invention relates to the production of compositions valuable as pest control agents, and especially as insecticides. The materials said to be suitable for such use comprise one or more isomers of benzene hexachloride, or a solution thereof, in a diluent or carrier for the pest control material. It is «aid that the y (gamma) isomer or a mixture of isomers containing a substantial portion thereof, is the benzene hexachloride employed. Hexachloride is also known as “hexachlorocyclohexane.”

■ Appellant has moved to dismiss the appeal as to claims 32, 35, 36, 37, 43, 44, and 45, which motion will be granted, leaving for our consideration the rejection of claims 33, 34, 40, 41, and 42, reading as follows:

“33. An insecticidal composition comprising a toxicant and a carrier therefor in which the toxicant contains as an essential active ingredient benzene hexachloride from which isomers other than the y isomer have been at least partially removed.

“34. An insecticidal composition comprising a toxicant and a carrier therefor in which the toxicant contains as an essential active ingredient benzene hexachloride consisting predominantly of the y isomer.

“40. The method of insect control which comprises contacting the insect with y benzene hexachloride.

“41. The method of insect control which comprises contacting the insect with benzene hexachloride from which isomers other than the y isomer have been at least partially removed.

“42. The method of insect control which comprises contacting the insect with benzene hexachloride consisting predominantly of the y isomer.”

The cited references are as follows:

Bender, 2,010,841, August 13, 1935; Wells, 2,238,714, April 15, 1941; Heilbron, Dictionary of Organic Chemicals, 1934 Ed., Vol. 1, page 127; Martin et al., Nature, 1944, pages 512 and 513; Fleck et al., Journal American Chemical Society, 1944, page 2095.

All of the claims were rejected as being too broad. Method claim 41 was further rejected on the ground of aggregation, it being held by the examiner that the process of purifying the compound has no patentable relationship to the use of the compound in an insecticidal composition. The board in affirming the decision of the examiner held that the claims are not adequately distinguishable from the disclosure in the Bender reference, which shows compositions comprising the crude mixture of all four isomers of benzene hexachloride.

The principal reference relied on is the patent to Bender relating to “addition chlorination” and the manufacture of chlorinated aromatic compounds, particularly those based on hydrocarbons of the benzene series, to form aryl chlorides. There is disclosed a process employed in the making of benzene hexachloride by the introduction of benzene into a body of liquid chlorine, “the addition of chlorine following smoothly and continuously in the liquid phase and in the absence of a catalyst such as light.” The chlorine is kept at about minus 15° C. by maintaining a pressure on the containing vessel of about 4 atmospheres. The benzene is introduced in a continuous stream. It is stated in the patent that the literature reports four benzene hexachlorides, all having the same molecular weight, 290.79, but melting at 112°, 129°, 157°, and 310° C., respectively. The final product of the patent is a mixture of those hexachlorides. It is also stated that benzene hexachlorides appear to be good insecticides for the reason that they slowly liberate hydrochloric acid vapor and are nearly water insoluble.

The patent to Wells relates to the purification of alkyl ethers of cellulose. There is disclosed a process of purifying those ethers. The patent was cited as illustrating the examiner’s rejection of claim 41, among others not before us, as being aggregative.

The Heilbron reference was cited to show that the four isomers, a (alpha), /? (beta), y (gamma), and 8 (delta), had been isolated and identified.

The Martin et al. and the Fleck et al. publications were cited by the examiner to contradict statements in certain affidavits of record. Those publications were not relied on in the rejection of any of the claims, and in view of the facts herein, it is unnecessary to consider them in that respect.

In rejecting the claims as being too broad, it was held that, as drawn, they fail patentably to distinguish from the crude mixture disclosed