Vandenberg v. Reynolds (268 F.2d 744, 1959)

RICH, Judge.

This is a patent interference on a single count which reads:

“The process which comprises polymerizing a mixture of buta-diene-1,3 and styrene at a temperature below 0°C. in aqueous emulsion in the presence of methanol, an emulsifying agent, an activating-reducing composition comprising a ferrous compound, and as the catalyst a phenylcyclohexyl hydroper-oxide in which the hydroperoxy group is attached to that carbon atom in the cyclohexyl ring which is attached to the phenyl ring.” (Emphasis ours.)

In short, the invention is a process of making synthetic rubber and its novelty resides in the catalyst used.

The Board of Patent Interferences awarded priority to Reynolds in a de-cisión of January 5, 1955, from which decision an appeal (No. 6232) was taken to this court. We did not therein pass on the priority issue but sent the case back to the Patent Office to decide another question, the decision of which had been deferred in the Patent Office pending a decision by us on priority, namely, whether the Reynolds application should be stricken from the files because of changes made in it after execution. For our opinion of March 29, 1957, in the prior appeal see Vandenberg v. Reynolds, 242 F.2d 761, 44 CCPA 873. On July 16, 1957, the Commissioner of Patents, acting through First Assistant Commissioner Crocker, held that the alteration of Reynolds’ application involved no change of substance and denied Vanden-berg’s petition to strike, adhering to his decision after two requests for reconsideration, and referred the case to the Board of Patent Interferences. The board, on November 19, 1957, adhered to and repeated its original decision on priority and from that decision the present appeal was taken.

The instant appeal presents two issues: (1) Whether the Commissioner