it, that a nickel plating process using coumarin and saccharin, as that of Du Rose, could be speeded up allegedly without loss of brightness and smoothness. However, in our view, Wesley clearly suggests that high speed could be obtained by increased electrolyte flow and high current density, and it would not be unobvious for one to adopt this suggestion and combine it with the process of Du Rose. No reference suggests that such increased electrolyte flow would result in decreased smoothness and brightness even in a bath containing primary and secondary brighteners. [1] The mere possibility that such combination would result in decreased smoothness and brightness does not render its successful use unobvious. Obviousness does not require absolute predictability. In re Seyb, Jr. (No. 8277), decided May 7, 1970; In re Moreton, 48 CCPA 928, 288, F.2d 940, 129 USPQ 288 (1961). We are unable to perceive on these facts that the inherent result flowing from adaption of the electrolyte flow process of Wesley to the additive bath process of Du Rose is unexpected or unpredictable. Certainly, at least, that "clear and convincing evidence" of unexpected properties required by this court in In re Lohr, 50 CCPA 1274, 317 F.2d 388, 137 USPQ 548 (1963), is lacking.

We have considered appellants' other arguments and authorities cited in support thereof; however, we are not convinced of error in the board's decision with respect to the rejection under 35 USC 103. The view we take renders it unnecessary to consider the rejection under 35 USC 112.

The decision is, therefore, affirmed.

425 F. 2d 772; 165 USPQ 579

PHIL E. WEISS (DECEASED) BY MILDRED L. WEISS ADMINISTRATRIX AND ABRAHAM M. REITER V. ERWIN M. ROSCHKE (No. 8290)

ERWIN M. ROSCHKE V. PHIL E. WEISS (DECEASED) BY MILDRED L. WEISS ADMINISTRATRIX AND ABRAHAM M. REITER (No. 8322)

PATENTS

1. CONSTRUCTION OF SPECIFICATION AND CLAIMS-INTERFERENCE COUNTS-IN GENERAL

CONSTRUCTION OF SPECIFICATION AND CLAIMS-INTERFERENCE COUNTS-REFERENCE TO SOURCE SPECIFICATION

While reference to gist of the invention sometimes is useful in connection with interpretation of ambiguous expressions in determining question of support for counts copied from patents, basic consideration in such determinations is what the language of counts defines as the invention; count copied from

patent is construed as broadly as language will reasonably permit; all limitations in copied count must be considered material in determining right to make, only in the case where count is ambiguous should resort be had to patent in which it originated to determine its meaning.

United States Court of Customs and Patent Appeals, May 14, 1970*

Appeal from Board of Patent Interferences, Interference No. 94,050, Opposition No. 45,685

[Modified.]

Samuel Lindenberg, attorney of record, for appellants and cross-appellee. Dugald S. McDougall, Francis W. Crotty, John J. Pederson, Homer R. Montague, for appellee and cross-appellant.

[Oral argument March 3, 1970 by Mr. Lindenberg and Mr. McDougall]

Before RICH, ALMOND, BALDWIN, LANE, Associate Judges, and ROSENSTEIN, Judge, sitting by designation.

ALMOND, Judge, delivered the opinion of the court:

These are cross appeals from the decision of the Board of Patent Interferences in Interference No. 94,050 involving Roschke patent No. 3,011,016, issued November 28, 1961 on an application filed June 29, 1959, and Weiss et al. (Weiss) application serial No. 219,375 for reissue of a patent1 issued on an application filed June 16, 1958, on counts copied from the Roschke patent by Weiss. The board awarded twelve of the counts to Roschke and Weiss appeals (No. 8290) 'as to ten of them, counts 1, 2, 6-9, 11-13 and 16. Two other counts, 15 and 17, were awarded to Weiss, and Roschke appeals (No. 8322) as to both of them.

Neither party took testimony, Weiss relies solely on his effective filing date, which is the date he filed the application that resulted in the patent which he seeks to reissue. Roschke contends that the Weiss application does not support the counts and further, that if any counts are interpreted so broadly as to be supported by Weiss, they are also supported by Roschke patent No. 3,107,274, issued October 15, 1963, on an application filed December 31, 1954, earlier than Weiss's effective date.

The invention in issue relates to a receiver for use in a subscription television system. Such a system contemplates that the programs be transmitted over the air on an assigned channel but in a coded condition so as not to produce either picture or sound intelligibly on a regular receiver tuned to the channel. A subscriber's receiver is provided with an attachment which, when adjusted in accordance with

*Petition for rehearing denied July 30, 1970.

1 Patent No. 3,001,011, Issued Sept. 19, 1961.

instructions for each program and action is taken to insure payment of the fee established for the program, decodes the received signals to cause the receiver to reproduce the program.

Counts 6, 8, 15 and 17 may be considered representative:

6. A subscription receiver for utilizing an intelligence signal coded in accordance with a given coding schedule comprising: a signal reproducer; a decoding mechanism for controlling said reproducer in accordance with said signal and including a plurality of adjustable code-determining elements collectively determining the decoding schedule of said mechanism; means for adjusting said codedetermining elements to vary the decoding schedule of said mechanism; means for applying said intelligence signal to said decoding mechanism; means for effectively comparing the decoding schedule of said mechanism to said coding schedule of said intelligence signal to derive a control effect representing the state of correlation of said schedules; and means for utilizing said control effect to permit said reproducer to operate only during intervals of correct correlation of said schedules.

8. A secrecy communication receiver comprising: means for deriving a code signal having a characteristic representing a given code pattern: decoding apparatus coupled to said deriving means and including a plurality of adjustable code-determining elements to be adjusted relative to one another in accordance with said code pattern; means for effectively comparing the instantaneous adjustment of said code-determining elements with said code pattern to derive a control effect indicating the correlation status therebetween; a signal-translating device having a plurality of operating conditions, a predetermined one of which conditions represents a correct correlation status between the adjustment of said code-determining elements and said code pattern; and means for utilizing said control effect to actuate said signal-translating device to said predetermined operating condition in response to a condition of correct correlation.

15. A secrecy communication receiver for utilizing an intelligence signal, comprising: means for deriving a code signal having a characteristic representing a given code pattern: decoding and reproducing means, including a plurality of adjustable code-determining elements to be adjusted relative to one another in accordance with said code pattern, for responding to said code signal and for intelligibly reproducing said intelligence signal; means for effectively comparing the instantaneous adjustment of said code-determining elements with said code pattern to derive a control effect indicating the correlation status therebetween; and means for utilizing said control effect to condition said decoding and reproducing means, only during intervals of correct correlation between the adjustment of said code-determining elements and said code pattern, to achieve intelligible reproduction of said intelligence signal.

17. A secrecy communication receiver comprising: signal-generating apparatus, including a plurality of adjustable code-determining elements to be adjusted in accordance with a predetermined adjustment, for developing a comparison signal having a characteristic determined, at least in part, by the instantaneous adjustment of said code-determining elements; means responsive to said comparison signal for effectively comparing the instantaneous adjustment of said code-determining elements with said predetermined adjustment to derive a

control effect indicating the correlation status therebetween; a signal reproducer; and means for utilizing said control effect to effectively control said reproducer.

In the Weiss system, the subscriber receives a desired program by setting a series of manually controlled switches in his receiver attachment to specific decoding positions which he is advised are necessary for that program and depositing the sum of money established as the charge for the program in a coin box. The picture signal is made unusable by nonsubscribers by transmitting the synchronizing signals necessary to reproduce the picture in a coded form not effective in a regular receiver but subject to decoding by subscribers in a manner not requiring a specific discussion here.

It is the treatment of the sound signal that Weiss relies on particularly for support of the counts. In addition to providing the regular program sound signal at the transmitter, Weiss also provides an unintelligible or nonsense sound signal. He further provides two audio or sound transmission channels A and B. Coding is achieved by switching the program sound and the nonsense sound randomly between channels A and B during vertical drive intervals of the transmitted signal so that program sound is on channel A when nonsense sound is on channel B and is on channel B when nonsense sound is on A. This switching is accomplished in response to signals from a randomly operated cyclic counter which is advanced both in response to pulses from a random pulse generator and outputs from a decimal counter. The circuit includes plugs or switches which are adjustable to different positions to select different coding schedules for different programs.

The outputs of the cyclic counter and the decimal counter, as coded by the adjustable switches, are also used to select, during vertical drive time, one of two tone signals T, and T2 of different frequencies. These signals T, and T2 are included in the output of the transmitter along with the composite signal including the coded video signals.

Unauthorized listeners tuning to Weiss's transmitting station get no intelligible sound because of the rapid random switching of the program and nonsense sound between the channels A and B. The equipment provided Weiss's subscribers, on the other hand, has decoding switches which, when set according to instructions for the particular program, result in the receiver speaker being switched back and forth between channels A and B in step with the switching at the transmitter to continuously impose the program sound on the speaker.

The manner in which decoding of the sound signals in the receiver is accomplished by Weiss is best considered in connection with his Figure 13 reproduced in pertinent part below:

2

This figure shows a counting circuit including a glow discharge tube 1258 and associated multiposition switches 1280 and 1282 in cooperative arrangement with a coin box 1224, which latter is associated with a multiposition switch 1256. The glow discharge tube is connected to an input circuit which is supplied from signals T1 and T2 so that energization of contacts K1 to K10 is under control of the coding pattern selected at the transmitter. Switch arm 1256 is to be adjusted to a position corresponding to the price which the subscriber is advised is being charged for the program and switches 1280 and 1282 are to be adjusted to positions determined by the coding of the transmitter and of which the subscriber has also been advised. As the result of the settings of arm 1256 and arms 1280A and 1282A of switches 1280 and 1282, respectively, and the cyclic operation of the counting tube, a signal pulse is produced at either one input terminal of AND gate 310