Citations
- 67 F.2d 920
Full opinion text
LENROOT, Associate Judge.
This is an appeal from a decision of the Board of Appeals of the United States Patent Office, affirming a decision of the Examiner, rejecting, for want of invention, claims 15 to 18, inclusive, and claims 25, 26, 27, and 38 of appellant’s application, No. 436,604, filed January 11,1921.
Claims 15,17, and 25 are illustrative, and read as follows:
“15. Alkali cellulose containing substantially over 60% caustic alkali, and not substantially less than 13% of water.
“17. A moist alkali cellulose containing substantially over 33% of caustic alkali, and not substantially below 17% of water, the amount of water therein being insufficient to dissolve all the caustic alkali.
“25. An alkali cellulose containing between about 33, and 20% of water, and between 54.5 and 65.5'% of NaOH.”
Appellant’s application relates to alkali cellulose and the process of making the same. Certain process claims were allowed. All of the claims here involved are product claims.
The reference relied upon is: Dreyfus (Fr.) 462,274, January 23, 1914.
This reference relates to alkali cellulose and a process for making the same. We shall hereinafter discuss some of the details of this patent.
The Examiner rejected the claims here involved upon said Dreyfus patent and the admitted prior art. The Board of Appeals in its decision makes no reference to admitted prior art.
Under the rule declared in the ease of In re Wagenhorst, 64 F.(2d) 780, 20 C. C. P. A. 991, that an affirmance by the Board of Appeals of a decision of the Examiner has the legal effect of a rejection upon the grounds and references cited by the Examiner, not expressly reversed by the Boai-d, we are at liberty to consider any ground of rejection by the Examiner, as well as the reference Dreyfus.
There are two questions before us for determination :
1. Whether the proportions of water stated in the claims render them patentable.
2. Whether the proportions of caustic alkali stated in the claims render them patentable.
It is the contention of appellant that the prior art taught that alkali cellulose should have no water content, and that he, appellant, discovered that by providing a water content ranging from 13 to 20 per cent., and substantially over 33 per cent, of caustic alkali, combined with cellulose, a new and useful product was produced which is patentable.
As hereinbefore stated the Examiner rejected the claims upon the Dreyfus patent and the admitted prior art. The admission, if'any there be, lies in the preliminary part of appellant’s specification, reading as follows:
“Be it known that I, Dr. Leon Lilienfeld, of Podhajce, Poland, a citizen of Poland, residing of 1 Zeltgasse, Vienna VIII, Austria, have invented certain new and useful improvements in and relating to manufacture of alkali cellulose, of which the following is a specification:
“For many purpose — , for example, for carrying out chemical reactions, such as the alkylation or aralkylation, arylatioru or the like of cellulose, sodium celluloses are used, which are homogeneous and contain only small quantities of water and a large excess of caustic alkali.” (Italics ours.)
The pertinent portions of the Dreyfus patent read as follows:
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