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loop is coated it will be obvious that the coating material must be tinted unless the same should be transparent. [Italics ours.]

Appellant argues that said disclosure of pre-tinting in his reissue patent was but a "scant description of tinted latex" and would not be adequate to support the appealed claims; that if said description had been considered adequate, "the present application would have been filed as a divisional application rather than as a continuation-inpart containing specific instructions and disclosing definite coloring materials such as indigo, lamp black and oxidized hydroquinone." Then he states:

However, applicant is not relying on the adequacy or inadequacy of the disclosure in the patent so much as he is on the fact that the claims are of different scope in the patent and the application and that the appealed claims define separate and independent invention over the patented claims.

Appellant then contends that no double patenting would result from the allowance of the instant claims for the reason that the claims of the reissue patent, and not its disclosure, are the determining factor. While it is true that the claims of a patent, and not its disclosure, are the determining factor, we agree with appellant's statement in his patent that it would be obvious that the coating material might be colored before it is applied. The patent points out that unless the coating were transparent it would hide the color of dyed threads and that therefore the coating, if not transparent, could be pre-colored. It is clear to us that no inventive concept is involved in tinting the latex the desired color before applying it to the textile. This being true, it seems to us that it logically follows that the appealed claims define nothing inventive over the reissue patent.

The law is well settled that one may not have two patents for the same invention. One reason for this rule is that under the system of granting patents, the monopoly of a single invention might be—as in the present case if the appealed claims were allowed-greatly extended.

The Board of Appeals cited a case by the Court of Appeals of the District of Columbia (now the United States Court of Appeals for the District of Columbia), In re Isherwood, 46 App. D. C. 507. That case holds that where the inventions are the same, even though that claimed in the later-filed application is more specific than the former, the claims of the latter may not be allowed over the patent already granted to the applicant, since he has already obtained in his patent all the protection to which he is entitled. This was the holding irrespective of the fact that the examiner had required division. That case has been frequently cited by this court as being a proper statement of the law that an applicant's issued patent may be used in reject

ing the claims of a subsequent application, although copending with the application of the patent, where the inventions are the same, notwithstanding the fact that the patent is not regarded as prior art. In other words, it is settled law that if an inventor has obtained a patent for a certain invention, he may not, in a subsequent application, be allowed a patent containing claims which do not distinguish patentably over those of the issued patent.

In In re Fischer, 19 C. C. P. A. (Patents) 1077, 57 F. (2d) 369, 13 U.S. P. Q. 144, this court said:

On the question of double patenting, appellant cites Traitel Marble Co. v. Hungerford Brass & Copper Co., 22 F. (2d) 259. It is claimed that this case is authority for the proposition that the difference between the claims of a pending application and those of a patent granted to the same party need not amount to invention.

We think that the weight of authority is to the effect that an inventor is only entitled to one patent for one invention and that he can not prolong his monopoly by claiming nothing more than the same invention in different language. In re Hutter, 55 App. D. C. 210; In re Woodsome et al., 56 App. D. C. 138; In re Forrest, 18 C. C. P. A. (Patents) 1028, 47 F. (2d) 395; In re Laughlin, 18 C. C. P. A. (Patents) 1239, 48 F. (2d) 921; In re Isherwood, 46 App. D. C. 507; In re Swan, 18 C. C. P. A. (Patents) 935, 46 F. (2d) 572; In re Peiler, 18 C. C. P. A. (Patents) 1102, 48 F. (2d) 405; In re Byck, 18 C. C. P. A. (Patents) 1208, 48 F. (2d) 665; In re Robinson, 18 C. C. P. A. (Patents) 1271, 48 F. (2d) 931; In re Slepian, 18 C. C. P. A. (Patents) 1393, 49 F. (2d) 835.

In In re Barge, 25 C. C. P. A. (Patents) 1058, 96 F. (2d) 314, 37 U.S. P. Q. 546, we had the following to say:

*

It is, therefore, settled law that in cases like the one at bar it is proper to hold the claims of a later filed application unpatentable in view of the prior art and of the claims of the applicant's issued patent. In re Isherwood, 46 App. D. C. 507; In re Swan, 18 C. C. P. A. (Patents) 935, 46 F. (2d) 572; In re Slepian, 18 C. C. P. A. (Patents) 1393, 49 F. (2d) 835.

It is not a question here as to whether, standing alone, appellant's process of coloring the rubber is inventive, but the important question is whether it is inventive over the claimed process of appellant's reissue patent, and we think appellant's own statements in that patent, as quoted above, show that it would not be inventive.

For the reasons stated, we think the Patent Office tribuna's arrived at the right conclusion. Accordingly, the decision of the Board of Appeals, affirming that of the examiner in rejecting the appealed claims, is affirmed.

553 O. G. 564; 30 C. C. P. A. 967; 135 F. (2d) 219

IN RE LINDEMANN ET AL. (No. 4717)

1. PATENTS-PATENTABILITY-ANTICIPATION.

Claims 6, 14, 16, 17, and 21 to 23 express no material change in structure from the structure disclosed by Glover and Moon, except in those which recite the thermostatic element. The inclusion of the thermostat in some of these claims is immaterial upon the question of patentability.

2. PATENTS-PATENTABILITY-FUNCTIONAL CLAIMS.

Many of the claims contain functional statements such as that a lower temperature is maintained in the upper part of the oven than in the lower. Such a functional statement cannot of itself lend patentability to the claim. 3. PATENTS-PATENTABILITY-NEW MATTER.

The element of claim 24 reading "passages around said partition having a substantially smaller area than those of said plate" is shown in Figure 1 of appellants' drawings. In Figure 1, the passages around the tray appear to be about the same size as the passages leading into the lower part of the oven, while in Figure 2 the passages around the tray are shown to be substantially larger than the lower air passages.

4. PATENTS-PATENTABILITY-NOVELTY.

Figure 2 of appellants' drawing clearly shows passageways around the partition of substantially smaller area than those around their plate in the bottom of the oven. The inclusion of this structural feature renders claim 24 patentable.

United States Court of Customs and Patent Appeals, April 5, 1943 APPEAL from Patent Office, Serial No. 316,312

[Modified.]

Steven J. Cox for appellant.

W. W. Cochran (E. L. Reynolds of counsel) for the Commissioner of Patents.

[Oral argument March 3, 1943, by Mr. Cox and Mr. Reynolds]

Before GARRETT, Presiding Judge, and BLAND, HATFIELD, LENROOT, and JACKSON, Associate Judges

LENROOT, Judge, delivered the opinion of the court:

This is an appeal from a decision of the Board of Appeals of the United States Patent Office affirming the action of the Primary Examiner in finally rejecting claims 6, 14, 16, 17, and 21 to 24 inclusive of appellants' application for a patent.

No claims have been allowed. The ground of rejection is that the claims are unpatentable over the cited prior art.

Claims 6 and 24 are illustrative of the subject matter involved and read as follows:

6. In a device of the character described, the combination with an oven compartment of a horizontal partition removably mounted therein, means for supporting the said partition at upper, lower and intermediate positions in said compartment, said partition substantially closing said compartment from side

to side and from proximity to front and back thereof, said partition being spaced from the walls of the compartment to leave air passages on two sides thereof between it and the inner walls of the compartment, said compartment having an air inlet at its bottom and an outlet at its top, a burner located adjacent each said opening, a horizontal plate extending over said inlet and between the burner adjacent thereto and said partition, said plate being spaced above and separated from the bottom of the compartment on three sides, said plate extending beyond said last-named burner and closing direct communication between the latter and the compartment to deflect heated gas rising from and passing around said burner against the walls of the compartment and causing them to pass upwardly along said walls, said burners comprising tubular members horizontally disposed and enclosing a space and said space being closed by a horizontal diaphragm or web partly closing said top outlet.

24. In an oven, a burner device at the bottom thereof in communication with and adapted to supply heat for the oven, a horizontal deflecting plate between said device and the bottom of the cooking space of the oven there being passages between it and the walls of the oven to permit the passage of heated gases, a horizontally arranged partition in said oven above the said plate substantially closing the space between the vertical walls of the oven and dividing the oven into upper and lower communicating cooking compartments above said plate there being passages around said partition having a substantially smaller area than those of said plate permitting passage of heated air and combustion gases from the burner through said lower compartment past said partition to the upper compartment and maintaining a lower range of effective cooking temperatures in said upper compartment than in said lower compartment for the cooking of different kinds of food simultaneously.

The references cited are:

Moon, 823,288, June 12, 1906.
Glover, 993,241, May 23, 1911.

Meacham, 1,495,862, May 27, 1924.

Appellants' application relates to an oven having upper and lower burners, which, however, are not operable at the same time. A horizontal partition is provided which fits snugly against the side walls of the oven. The partition is so placed with respect to the front and rear of the oven as to leave passages permitting heated gas to flow from the lower into the upper part of the oven. A thermostat is provided, placed in the lower part of the oven adjacent to a wall thereof. The lower part of the oven is provided with a baffle over the burner in order to distribute the heated gases from the burner to the sides and front of the oven. The spaces between the partition and the vertical walls of the oven have a substantially smaller area than the spaces permitting the flow of gas from the burner into the lower part of the

oven.

It is appellants' contention that by their structure "two distinct temperatures are maintained by a single burner in two separate compartments simultaneously so that cooking operations of different types can be carried on therein at one and the same time."

The patent to Glover discloses an oven divided into two parts by a tray, the tray being so dimensioned as to leave spaces at the four sides to enable the heated gases to enter the upper part of the oven. In the lower part of the oven a cone is provided over the burner. Above this cone a plate or false bottom is provided of such dimensions as to leave spaces between its four sides and the four walls of the oven to enable the heated gases to rise. According to the drawings these spaces are at least as large as the spaces between the partition tray and the walls of the oven.

The specification of Glover states:

The Invention is of advantage in that the articles being cooked or heated are subjected to the direct radiating heat from four surrounding walls of uprising heated gases, and the heat being reflected at the upper part of the oven the temperature is practically even at all parts thereof.

The patent to Meacham discloses an oven divided into two separate parts by a partition and heated by separate burners. This partition is so dimensioned as to prevent any appreciable amount of gases to flow from one part of the oven to the other. A thermostat is provided near the upper part of the lower compartment of the oven.

The patent to Moon discloses an oven divided into upper and lower compartments by a partition, the only direct communication between them being at the front. Two burners are provided, one for supplying heat to the upper compartment, and the other for the lower.

There is found in the record an affidavit of an expert in household economics, setting forth the great advantages of appellants' device. Claims 6, 14, 16, and 17 were rejected by the Primary Examiner as lacking patentability over the patent to Glover in view of Meacham and Moon. Claims 21, 22, and 23 were rejected upon Glover in view of Meacham. Claim 24 was rejected upon Glover alone. The Board of Appeals in its decision stated:

We have carefully considered the citations and application of the same to the terms of the claims as made by the examiner without finding error in his conclusions as to invention. While an extended discussion of theory is presented by applicants' case as to why there are differences between the action of his oven and that of the citations, we are unable to distinguish any definite certain features. The matters appear to be mostly those of indefinite degree. While it is apparent that Glover allows gases to ascend around each of the four sides of his partition instead of only two, we are not convinced that any such unobvious or outstanding results are accomplished in applicants' oven as to constitute invention in this relation. It seems that Meacham's partition 6

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