Kirschbraun v. Doherty (90 F.2d 251, 1937)

GRAHAM, Presiding Judge.

An interference proceeding was instituíed in the United States Patent Office between the application of Lester Kirschbraun, for certain improvements in apparatas and process for treating hydrocarbon oils, filed April 1, 1920, and a pending application of one Henry L. Doherty, filed February 24, 1920, for a similar invention. There were originally five counts jn ^ interference. Count 1 of the interference, as now before us, is the only re-paining count which was in the original interference as count 3 thereof. Counts 2 and 3 of the present interference were added on the suggestion of the party Doherty, All three of the present counts originated *n t^le Doherty application.

The three counts of the interference are as follows:

l- A process of distilling oil comprisinS heating a heavy hydrocarbon oil under pressure to a cracking temperature while it is being circulated in a stream, discharging the heated oil into an enlarged chamber while maintaining the pressure therein to separate vapors from the oil, continuously leading the vapors and the oil in separate streams from the chamber into a body of oil maintained at a cracking temperature and pressure, bringing the vapors into direct contact with the oil of the body and leading off vapors from the body and condensing them.

“2. A continuous process for cracking hydrocarbon oils, which comprises heating the oil in a confined stream of restricted cross section in a cracking zone, passing cracked oil from said zone through successive vapor releasing chambers of decreasing temperature and pressure, passing vapors released in a chamber of higher temperature through and in intimate contact with liquid oil in the next succeeding chamber of lower temperature, and withdrawing and condensing vapors from the chamber of lowest temperature.

“3. The process of cracking hydrocarbonu oils ^ch comprises, heating the oil to be cracked to a cracking temperature m a conhned stream oi restricted cross section in a heating zone, passing heated oil from saj^ zone through successive vapor releasing zones 0f decreasing temperature and pressure, passing vapors released in each vap0r releasing zone except the last, into the next succeeding zone of lower temperature in contact with liquid oil constituents therein, subjecting vapors remaining uncondensed in said zones to dephlegmating conditions to produce reflux condensate, passing reflux condensate produced by said dephlegmatic conditions to said heating zone for retreatment, and producing a final condensate from the vapors removed from the last vapor releasing zone.”

The junior party Kirschbraun filed a motion to dissolve the interference on the ground that the Doherty application fails to disclose or teach the invention defined by the counts and will not support said counts, ’

. _ , , , The senior party Doherty moved to dissolve the interference on the grounds: First, on account of irregularity m its declaration; second, that the Universal Oil Products Company the assignee of the jumor party Kirschbraun, had waived its rights by failure to move to amend m mterference No. 55,846 (Doherty v. Dubbs) and insert the counts of this interference m said interference; third, that the junior party s aforesaid assignee is estopped by its failure for more than two years after knowledge thereof to copy the then allowed claims 3, 4, and 5 from the senior party s application; fourth, that the Junior party has no right to make counts 1 and 2 because of failure to disclose the subject-matter defined by these counts, namely, and particularly, that it does not disclose the passage of all of the cracked oil and all vapors. (Italics ours.)

The Examiner of Interferences sustained the Kirschbraun motion to dissolve as to counts 1 and 2 of the interference, and overruled it as to count 3, which was made, thereafter, count 1. The Doherty motion to dissolve was overruled in toto. Doherty’s motion to add proposed counts 6 and 7 was allowed and these were added as new counts 2 and 3. The interference was dissolved as to counts 4 and 5 on the motions of both parties. The interference was then reformed with three counts as they are now before us

. . On final hearing, the Examiner of Interferences awarded priority as to all counts to the senior party Doherty. On appeal, the Board of Appeals affirmed the decision of , „ . r T ^ r the Examiner of Interferences.

The matter comes to us on the appeal of the junior party Kirschbraun, and a number of questions are raised which will require a rather extended survey of the rec•Drd. Both parties took evidence as to priority of conception and reduction to practlce*

The counts now in the interference are each for process.

The application of the senior party discloses a process for distilling heavy hydrocarbon oils. The produtt desired to be obtained is lighter hydrocarbon oils, particularly gasoline, and other fractional distillates. The invention contemplates rapid- ^ circulating heavy oil through a heater m a comparatively small stream and carrying a stream of vaporizing and agitating inert gas in contact and parallel with the oil whfle ¡t .g bei heate